COURT FILE NO.: CV-17-12-00
DATE: 2022-08-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Betty Scheibler as the Litigation Estate Administrator for the Estate of Milton Edward Westover, deceased
Plaintiff
- and -
Joseph Allen Jolicouer, Joanie Marie Jolicouer aka Joan Marie Jolicouer and Debra Lee Westover-Morriseau
Defendants
A. Jiwa, for the Plaintiff
D. Judson, for the Defendants Joseph Allen Jolicouer and Joanie Marie Jolicouer
R. Lepere, for the Defendant Debra Lee Westover-Morriseau
HEARD: June 20, 21 and 22, 2022, at Fort Frances, Ontario
Mr. Justice F. B. Fitzpatrick
Trial Judgment
Background
[1] Milton Westover was a farmer. He lived his whole life in the Rainy River District. He and his wife Anne raised five children. Three of these adult children are parties to this litigation.
[2] Milton died on August 13, 2018. He was 93 years old. He had commenced this action in April 2017, a year and a bit before he died.
[3] Milton’s daughter, Betty Scheibler, acting as litigation administrator for Milton’s estate carried on the case. On consent the trial was bifurcated. The parties agreed that threshold questions of liability of the defendants would be first adjudicated in the interests of efficiency. The court did not hear evidence regarding alleged damages. Evidence in chief of all witnesses, except Milton, was given by affidavit. All five of Milton’s children testified. Milton was examined for discovery on April 17, 2018. The parties agreed to enter his entire transcript on discovery as the best evidence available for him for the purposes of this trial.
[4] The parties agreed on certain facts. The parties entered certain documents for the truth of their contents. In my view, the affidavit evidence and the vive voce cross examination evidence of all parties did not deviate greatly from the chronology of events that are relevant to this matter that is evidenced by the agreed statement of facts. The agreed statement of facts identified the various properties and parties involved in this matter in a defined way that I will carry forward with those descriptions in the balance of this judgment. Accordingly, I will repeat the agreed facts now.
Agreed Facts
[5] The Plaintiff, Milton Edwin Westover (“Milton”) was born on October 24, 1924. Milton died on August 13, 2018, when he was 93 years and 10 months old.
[6] In or around 2007, Milton, started having hearing issues and could not hear well without wearing a hearing aid. Milton was married to Annie Westover (“Annie”). Annie managed the family finances until a few months before her death in May 1996.
[7] Annie and Milton had five children: Betty Scheibler (“Betty”), Joan Jolicouer (“Joan”), Cliff Westover (“Cliff”), Debra Lee Westover-Morriseau (“Debra”), and Richard Westover (“Richard”).
[8] Milton had appointed Annie as his attorney for property and named Debra as an alternate attorney for property pursuant to a Continuing Power of Attorney for Property executed by him on June 20, 1995. Milton appointed Debra and Betty as his attorneys for property pursuant to a Continuing Power of Attorney for Property executed by him on September 23, 2015.
[9] Milton appointed Debra and Betty as his attorneys for personal care pursuant to a Power of Attorney for Personal Care executed by him on September 23, 2015.
[10] Milton also executed a Last Will and Testament naming Debra and Betty as executors on September 23, 2015 (the “2015 Will”). The 2015 Will bequeathed some personal items to various individuals, Lots 4721 and 1636 (also known as the Home Property) to Betty, and the residue was to be distributed equally to all of his children, other than Joan.
[11] Milton executed another Continuing Power of Attorney for Property wherein he appointed Betty as his attorney for property on June 20, 2017 and named Cliff as the alternate attorney for property.
[12] Milton also executed a Last Will and Testament naming Betty as sole executor on April 8, 2018 (the “2018 Will”). The 2018 Will provided that the residue of the Estate was to be distributed equally to all of his children, other than Joan.
[13] On June 7, 2019, Betty was issued a Certificate of Appointment of Estate Trustee With a Will.
[14] Starting in the 1940s Milton began purchasing pieces of property in and around where he resided. Those transactions are as follows:
(a) he purchased Parcel 11820 from the Matthews in 1943, now PIN 56037- 0019 (the "Matthews Property");
(b) he purchased Parcels 4721 and 1636 in 1951 where the home he resided in until his death was built, now PIN 56037-0040 and PIN 56037- 0040 (the "Home Property");
(c) he purchased Parcel 13812 from the Hamiltons in 1958 (the "Hamilton Property");
(d) he purchased Parcel 5991 from the Scotts in 1962, now PIN 56037-0134 (the "Scott Property"); and
(e) he purchased Parcel 1674 from the Loves in 1970, now PIN 56037-0042 (the "Love Property").
[15] Milton operated a farm on the properties.
[16] On March 30, 1990, Milton severed one acre from the Love Property and gifted same to Debra and her husband, Wesley Morriseau, which became their residential property.
[17] In 1991, Joan and Allen built a house on the Hamilton Property, which is about 161 acres of land, and is located across the road from the Home Property. On November 16, 1994, Milton and Annie transferred the Hamilton Property to Joan and Allen for no consideration.
[18] An Agreement of Purchase and Sale was executed by Joan and Allen, as purchasers and Debra, as attorney for property for Milton, as vendor on May 6, 1997, wherein the remaining properties owned by Milton were to be transferred to Joan and Allen for $70,000.00. Milton would remain as a joint tenant with Joan and Allen on the Home Property. The sale included all cattle, equipment and machinery owned by Milton in relation to the farm operation (the “First Agreement”).
[19] Subsequently, a further Agreement of Purchase and Sale was executed by Joan and Allen, as purchasers and Debra, as attorney for property for Milton, as vendor on May 16, 1997, wherein the remaining properties owned by Milton were to be transferred to Joan and Allen for $106,000.00. Milton would remain as a joint tenant with Joan and Allen on the Home Property. The sale included all cattle, equipment and machinery owned by Milton (the “Second Agreement”).
[20] The Second Agreement provided the following breakdown of the purchase price:
Fair Market Value Value Assigned
Machinery, equipment $ 6,000.00 $ 6,000.00
Cattle Nil. Nil.
Principal residence & 1 acre of land $30,000.00 $30,000.00
Remainder of Parcels 4,721 & 1,636 $25,000.00 $25,000.00
Parcel 1,674 $20,000.00 $20,000.00
Parcel 11,820 $5,000.00 $5,000.00
Parcel 5,991 $20,000.00 $20,000.00
TOTALS $106,000.00 $106,000.00
[21] The transfers of the properties as per the Second Agreement was completed on September 11, 1997. Debra signed the closing documents as Milton’s attorney for property. Ian J. McLennan (“McLennan”), a Barrister, Solicitor and Notary Public, of Fort Frances, was retained to close the transaction.
[22] On September 11, 1997, two separate transfers were registered. The Home Property was transferred to Joan, Allen and Milton as joint tenants for consideration of $61,000.00. Parcels 11820, 5991 and 1674 were transferred to Joan and Allen as joint tenants for consideration of $45,000.00.
[23] Allen and Joan paid the sum of $70,000.00 as consideration for the property transfers on or about the time of closing.
[24] A lease agreement with Cyntech Solar Systems Inc. (the “Solar Lease”) in relation to the Home Property was signed by Allen and Joan and purportedly by Milton on April 16, 2010, for a 20 year term. The Solar Lease provided that $1,500.00 would be paid annually to “the owner” of the Home Property. The annual cheques for $1,500.00 were made payable to Allen, Joan and Milton.
[25] Allen and Joan kept the annual lease receipts for themselves and did not pay any share to Milton until Milton passed away.
[26] On September 25, 2015, Milton arranged to have a transfer registered by Robert Brown Morgan, a lawyer, from Milton as transferor and to himself as transferee, thus severing the joint-tenancy with respect to the Home Property.
The Trial Evidence
[27] I heard evidence from seven witnesses in this matter as well as having the transcript of the discovery of Milton. I begin with a discussion of Milton’s direct evidence because of the unique circumstances of this matter.
[28] As noted previously, on the basis of it being the best evidence available, the parties agreed to have Milton’s discovery transcript treated as his trial testimony. A review of the transcript indicates that Milton had great difficulty hearing the questions asked. In my view, his answers to the questions asked on discovery were mostly vague and unhelpful. To the extent the plaintiff relies on specific portions of the transcript in support of its position, I note that I was not persuaded by the conclusions urged upon me by counsel for the plaintiff in respect of those portions of the discovery evidence.
[29] Mr. Phillips a senior solicitor in Fort Frances was acting for the defendants Allen and Joan at the time Milton was discovered. Mr. Jiwa was acting for the plaintiff. The “opening sequence” of the discovery gives a very good foreshadowing of the overall quality of the evidence that was about to be obtained. I set out the relevant portion of the transcript now;
TUESDAY, APRIL 17, 2018
LONG DISCUSSION WITH MR. WESTOVER CONCERNING HIS HEARING
MILTON WESTOVER: AFFIRMED
EXAMINATION BY MR. PHILLIPS:
- Q. Do your hearing aids have adjustments that you can get them louder?
A. Do what? Do what?
- Q. Do you have adjustments for your hearing aids that you can make them louder?
MR. JIWA: Can you make it louder?
- MR. PHILLIPS: Your hearing aids, like I made mine louder by twisting this.
A. It's rather loud enough, loud enough but everything, but I can't tell what you are trying to ask me.
- Q. Okay. Okay, can you hear what I'm talking now? Can you hear me? Do you understand me?
A. I don't get you.
- Q. Can you hear me?
A. I can hear your voices through screeches it’s not a, I can’t hear what you’re asking
- Q. Oh, I'm Just asking, can you hear me?
A. Can I? can I hear you?
- Q. Yeah.
A. Yeah, I can hear you making a noise, but I can’t tell what it is you’re asking?
[30] At that point in the discovery Mr. Jiwa suggests that Betty assist. Apparently, Milton could hear things only if Betty was up close talking to him. Mr. Phillips resists this suggestion initially and continues for another 12 questions before he agrees that Betty can assist. Betty then continues to re ask all the questions in the discovery. I recount this because it is unusual and I think it indicates the degree to which Milton was beholden to Betty. This is important in assessing Milton’s evidence which I will discuss below.
[31] The other witnesses were all cross examined at the trial. Largely they all stuck to their respective stories. As far as the plaintiff’s case goes, I see Betty’s evidence as the most direct and germane to the issues in this matter. The evidence of Cliff and Richard was a lot of “me too” oath helping of Betty’s evidence. In other words, not helpful evidence. Overall, Richard’s evidence was the least useful. Cliff had something to say on one major point. I think Betty’s evidence was completely self-serving and not persuasive for reasons I will discuss below.
[32] As far as the defence evidence goes, Allen, Joan and Debra all had direct evidence on the land transactions which were centre stage at this point in the matter. The evidence Nancy Jolicouer, (Allen and Joan’s daughter) was not helpful. She testified about a conversation with Milton which occurred after the litigation commenced. In this case, her recitation of what Milton said was not persuasive to me of matters at issue. In my view, Milton had made up his mind once the litigation had been commenced about what he thought had occurred 18 years earlier. How realistic or believable Milton’s evidence was or is, is another matter which I will discuss below.
[33] In my view, the most direct and forthright of all the witness was Debra. Although she was a defendant in a matter where the plaintiff alleged she had committed fraud and conspiracy, I assess that she had nothing to gain in this matter by testifying the way she did and taking the positions that supported the co-defendants. In fact, Debra would potentially benefit if the plaintiff’s claims are allowed. Yet she testified in a way that was contrary to the plaintiff’s position. This is an important aspect of my assessment of the credibility of her evidence. She did not testify in a way that would give me any reason to believe she was involved in a fraud on her father.
[34] Credibility is important in this matter as in all trials. To the extent there was contrary evidence given by different witnesses on key points, I resolve these differences by looking to certain facts which were not in dispute.
[35] Milton, followed by Allen and Joan, operated and continue to operate a cow/calf operation on the farm at issue. The farm encompasses all the lands in dispute in this matter as well as the parcel which Allen and Joan were gifted by Milton in 1994.
[36] The farm operation was important context for assessing all the evidence in this case. Overall, I view the plaintiff’s evidence as parsing out isolated events and ignoring the larger context of the dynamic of the relations between all the parties. In my view, all the evidence put forward by the plaintiff can be described (using a metaphor) as being “all hat and no cattle”.
Analysis and Findings
[37] There were two main events in this matter. First, the land transfers in 1997. Second the altercation between Allen and Wes in April 2015 which set off a chain of events leading to this litigation. These events are dealt with in the agreed facts. Counsel for the plaintiff in closing submissions described the issues to be determined in this matter as follows:
did Milton intend to, and did he in fact direct the defendant Debra to transfer all of his lands to the Jolicouers?
what is the effect of the Jolicouers only paying $70,000.00 or 66% of the purchase price on closing?
does a limitations period bar this action?
Should the transfers be declared invalid and order the subject properties be vested into to the estate?
if so, what should happen about the $70,000.00 paid by the Jolicouer’s on closing?
is Debra liable to the plaintiff if she acted without authority?
[38] In my view this statement of the issues 1, 2 and 3 provides an appropriate framework for resolving the matter. I see it that the plaintiff has to be successful on all the first three issues before it would be appropriate to move on to consider issues 4 through 6. I will now discuss the evidence and the applicable law in the context of each of these first three issues. There is an additional issue concerning the counterclaim of Allen and Joan against the estate. I will deal with that at the end of the discussion of the six issues above.
Issue 1. Did Milton intend to, and did he in fact direct the defendant Debra to transfer all of his lands to the Jolicouers.
[39] There are a number of agreed facts which bear on this issue. In 1997, Milton was 73. He was not starting out in the farm business. He was at the end of his career. Three years earlier he had gifted a large piece of property across the road from his home to Allen and Joan. This transfer is not disputed. He did not tell his other children about this transfer. Not surprising for a man that everybody agrees was quite private and also disinterested in his financial affairs. Yet none of the children who testified on behalf of the plaintiff took any issue with this transfer.
[40] Also, Allen and Joan where the only members of the family that were carrying on active farming in the vicinity of where Milton had farmed his whole life at the time and up to the present.
[41] It is clear on the evidence that Milton left important financial matters to other people. First to his wife. After her death he turned to Debra. After the incident of April 2015, he relied on both Debra and Betty. Around the time he commenced the lawsuit and until his death he left things to Betty. I accept this as important context which explains the way matters unfolded.
[42] The transactions at the centre of this action took place in 1997. The circumstances of that time are very different than now. I see this too as important context. Milton did not like to go to town to do banking, deal with lawyers, deal with accountants or even see a doctor. In 1997, people had to go to town to a lawyer’s office’s in person to sign documents among other things. Finalizing a real estate deal required a trip to town which was something Milton did not like to do. It was also agreed that Milton was perfectly capable of doing such things at the time. He just chose to have others do them for him.
[43] Debra was appointed an alternate power of attorney in 1995. After her mother died in May 1996, she took over the financial duties that her mother had done for herself and Milton. Debra listed these duties as including:
a. attending at the bank to pay his monthly bills and expenses;
b. buying him groceries and other essentials;
c. picking up his medication and tobacco;
d. paying for any repairs that needed to be done at his home;
e. depositing any revenue that would be received with respect to the operation of the farm into his bank account;
f. arranging for the completion of his tax returns; and
g. attending at the doctor's office to renew his prescriptions for his thyroid medication as he refused to visit the doctor.
[44] There was no issue that Debra was acting in a capacity as a fiduciary to Milton in 1997.
[45] Debra signed the transfer documents for the lands at issue on behalf of Milton. A solicitor was acting on the transaction. He accepted her signature as evidence of the intention of the owner to transfer the lands. While the benefit of hindsight could cause an “eyebrow raise” considering this solicitor was acting on both sides of the transaction, I do not see this as unusual or a badge of fraud in the context of a rural real estate deal among family members in the 1990’s. The fact that the deal involved family members was not sufficient to take the transaction to a higher level by imposing some degree of fiduciary or special duties on the purchasers Allen and Joan. They relied on Deb acting as power of attorney. They knew Milton did not like doing this type of thing himself. Debra doing the deal was consistent with how Milton conducted himself in the past by relying on others to take care of the details. It was putting the farm lands into the hands of the people who were doing the work and were going to do the work in the future.
[46] Debra testified that first, her brother Cliff told her to arrange the transactions. Cliff denies he directed her to do it. Debra said she checked with Milton. Her testimony was that he expressly told her to complete the transactions and that “he didn’t want to hear anymore about it”.
[47] Milton was asked about this directly on discovery. In my view his answers were equivocal and not clear about his directions to Debra.
[48] Counsel for the plaintiff relies on the following questions and answers
Q 48: Q. Do you recall any discussion with your son, I think is Cliff, you have a son by the name of Cliff, that you wanted to transfer the lands to Allen and Joanie for $100,000.00?
A. Oh, no, no.
Q 49: Q. Do you remember your wife saying that she wanted to sell it to them for 100,000?
A. Oh no, she never said that.
Q 50: Q. So you're saying that you don't recall giving instructions to Deb to transfer the lands?
A. No, I never, to do anything she took over to do if she did anything it was between her and her mother.
Q. 84 So in 1997 you were able to decide what was going to be done with your land?
A. I figured I was always able to say that, yes, because it was my land, always my land. I didn't know anybody sold any places here or anywhere else. It was all done, 1 didn't know anything about that there, her selling them places or anything at all until, until she sold them and how did, how they did she sell them without me signing them. There’s this chair is hard to sit on.
[49] I find these answers are not clear. They do not convince me that Milton did not instruct Debra in the way that Debra has testified. Milton’s answers do not make sense. They do not indicate he did not tell Debra to sell to Allen and Joan.
[50] Cliff testimony was relevant to this trial in only one respect. It was in regard to this issue of Milton’s intentions in 1997. However, I do not accept Cliff’s denial of his directions to Debra in 1997. Cliff has a direct interest as a beneficiary of seeing to it that the plaintiff is successful in this action. He buttresses his denial of giving Debra these directions on the assertion that his father never spoke of the transactions. It is clear on the evidence Milton did not tell Cliff or any of his children that he gifted land to Allen and Joan in 1994. Yet this transaction is not challenged despite the fact it was for nominal consideration. For these reasons I find Cliff is mistaken in his evidence about events of 1997 and specifically his claim he did not give Debra the instructions about Milton wanting to sell the lands to Allen and Joan.
[51] I prefer the evidence of Debra on the question of whether or not she had instructions to do what she did. I say this for the following reasons.
[52] There is no dispute that Debra was acting under a valid power of attorney in 1997.
[53] Debra evidence in supporting the transaction is contrary to her personal interest at the time of trial and the time she prepared her affidavit. If the plaintiff is successful in its primary claim of reversing the 1997 transactions, Debra will benefit because her share of Milton’s estate will increase. This militates strongly in favour of accepting her evidence.
[54] Debra saw to it that a lawyer was involved. This indicates to me that Debra was acting according to instructions from Milton. Fraudsters try to keep others, like licenced professionals who could lose their licences from participating in fraud, away from transactions that are designed to be fraudulent. Yet in this case, the lawyer saw to it that Milton’s accountants were made aware of the transaction. In fact, the accountants weighed in to suggest an increase in the purchase price. This price increase was accepted by Allen and Joan. Again, these actions suggest appropriate motive and legitimacy and not badges of fraud on the part of Allen, Joan and Debra.
[55] On the evidence, Debra got zero benefit from seeing the lands transferred to Allen and Joan in 1997. There is no evidence that Debra had any motive or reason to conspire with Allen and Joan to see the lands transferred to them. The highest and best of all the evidence of the plaintiff’s witnesses was that they were not told about the transactions. Not telling people about his affairs was the way Milton went about his business. In my view this is not proof on the balance of probabilities of fraud. Also, it is not proof on the balance of probabilities that Allen, Joan and Debra conspired to keep the matter secret. The transactions were registered on title. Plain as day.
[56] The transaction put $70,000.00 in Milton’s pocket. All of the plaintiff’s evidence conveniently skates around this very important fact. The transactions in 1997 was done for good and valuable consideration. The land was not transferred for nominal consideration.
[57] On the face of the agreement of purchase and sale the purchase price was for $106,000.00. I had no evidence before me to suggest this was not market value for all of what was transferred or indeed whether $70,000.00 was full market value. The plaintiff bears the onus in this matter. Deficiency in consideration is a badge of fraud. Alternatively paying fair market value for an asset is strong evidence that the arrangement is legitimate. It is clear Milton raised no concerns about the fact that the balance of the monies were never submitted. Debra in her affidavit says she mentioned it to Milton on a number of occasions prior to 2015. I accept this evidence. Yet at this trial, the plaintiff submits I should draw a conclusion that Milton had no knowledge of his instructing Debra to proceed in 1997.
[58] The plaintiff’s failure to lead evidence on the fair market value point lessens their assertion that Milton was defrauded or that he did not authorize the transactions.
[59] $70,000.00 is not nominal consideration. Milton was asked on his discovery if he ever looked at his bank book. He answered no. It is a convenient answer 18 years after the fact. However, to me it is an unbelievable answer or one that evidences willful blindness or a person who has been misled or is exhibiting the forgetfulness that sometimes comes with advanced age. Debra testified Milton had $15,000 in his bank account in 1996. About a year and a half later that amount increased by 3-fold. I do not believe Milton answered truthfully when he said he did not look at his bank account. Also, if indeed he did not look, this is not evidence of fraud or conspiracy or lack of instructions on the part of anybody else. It is evidence of a man who did not like to deal with his financial circumstances.
[60] The evidence was that after 1997 and for the next 18 years Milton went pretty much every day across the road to Allen and Joan’s place. He was fed there. Common sense dictates he must have liked it or else he would not have kept going. This is not evidence that Allen and Joan were attempting to continue to perpetrate a fraud or a conspiracy.
[61] The parties agreed there was no evidence that Milton was incapable of managing his property in 2011 or at any time up until the time he died. He just left it to others to do.
[62] There was also no evidence to the contrary that Milton signed a lease with a solar company to put panels on the Home Property in 2010. Having Milton sign a lease regarding land where he was a joint owner is consistent with the state of affairs of title as demonstrated by the title register. An independent third party insisted on having him sign. His status as a joint tenant of the Home Property also militates against a finding that he was a victim of fraud or conspiracy.
[63] I did not find as credible any evidence Betty purported to give about the events before 2014 involving the transactions. This is because Betty admitted in cross-examination she had nothing to do with Milton’s personal matters prior to 2014. What was significant as far as assessing Betty’s credibility about her allegations of fraud and conspiracy against Debra, Allen and Joan, was Betty personal situation in relation to Milton from 2014 onward.
[64] Betty had moved in with Milton in 2013. Her marriage was over and she left the matrimonial home. Her evidence and that of Debra was contradictory as to whether Betty was there to provide caregiving services to Milton. I prefer Debra’s evidence that Betty moved in with Milton to benefit herself and not to help Milton. The parties agreed Milton at all times was capable mentally and physically.
[65] Betty’s evidence focused on the fact that Milton never mentioned the transactions to her. Like the other witnesses for the plaintiff, this was their highest and best evidence of the alleged fraud and conspiracy. This was not persuasive as to the theory of the plaintiff’s case.
[66] Milton made a will in September 2015. He made Debra and Betty co-executors. The will contained an interesting paragraph 4(m). It commenced by stating “I have also transferred parcels 4721 and 1636 in the Township of Dobie by instrument A0068349, which property was transferred into joint tenancy for estate planning purposes”. This is the Home Property. The paragraph does not assert fraud concerning the Home Property. The paragraph does not assert Milton had no knowledge of the transfer of the Home Property. It is a statement that is completely contrary to the all the evidence of the plaintiff that Milton had no knowledge of the transfer or was done without his authority. It is also contrary to any allegation that Debra, Allen and Joan defrauded Milton in respect of the transfer.
[67] The will then continues to assert that the Home Property is held in trust for his estate. Further it directs that title to the Home Property is to be transferred to Betty for her use absolutely.
[68] A Fort Frances solicitor Robert Morgan drew the will. He died after the litigation was commenced. No affidavit or sworn testimony was obtained from him in relation to this matter prior to his death. The parties have agreed to have certain documents authored by Mr. Morgan admitted for the truth of their contents. The documents included Mr. Morgan’s notes and a reporting letter he sent to Milton once the will was drafted in 2015. The documents were of some assistance to the court. It is clear Mr. Morgan had been told by Milton that he “wanted his land back” particularly the Home Property. It is clear that Debra asserted Milton had instructed her to do the transactions in consultations with Cliff in 1997. It is clear Milton knew Allen had paid him $70,000.00 “for something”. Mr. Morgan sent a letter following the meeting to Allen and Joan demanding return of the land in February 2016.
[69] All of this evidence gleaned from Mr. Morgan’s notes do not give me a basis to find on the balance of probabilities that Debra was acting without instructions in 1997. While Mr. Morgan thought Debra’s action were “not very reasonable” in 2015, in April 2017 he sent a letter to Milton which stated “You indicated that you have no complaint against Debra and you do not wish to make a complaint against Debra”. He continued “You indicated that you are satisfied that Debra understood that she was acting in your best interest and in accordance with your instructions but it was a misunderstanding”.
[70] Mr. Morgan’s notes and letters do not address why it was that Betty was going to receive the Home Property. In my view, Mr. Morgan’s documents admitted for the truth of their contents do not persuade me of the assertions made by the plaintiff that Milton did not instruct Debra to transfer the lands on his behalf. The documents from Mr. Morgan confirm that consideration was paid for the lands in 1997, that Milton knew about the money that was paid but that in 2015 Milton had somehow decided he wanted to reacquire certain lands. There is also no question Milton was aware that Debra had been involved in carrying out his instructions in 1997. I agree with the submissions of counsel for Allen and Joan “this does not a fraud make”.
[71] Other evidence from the plaintiff’s witnesses suggested that Milton had some overall plan to give each of his children a parcel of land upon his death. Joan got hers in 1994. Debra was given a one-acre parcel in 1990. In 2015 the Home Property was the most “developed” as it had barns, a residence and power on it. There was no evidence to determine why Milton was decided to gift this property to Betty as opposed to Cliff or Richard. There is nothing in the documents from Mr. Morgan that would assist in this. Yet Betty comes up with the most valuable of the parcels gifted in the 2015 will.
[72] The day after Milton was discovered in 2018, his counsel in this action drew a new will for him. In this April 18, 2018 will, Betty was named the sole executor. Also, the will changed the gift concerning the Home Property in that it provided that the residue of the estate would be divided equally between Betty, Cliff, Richard and Debra. I understand from submissions the validity of the will has not been challenged.
[73] In my view this evidence from the 2015 will and the 2018 will indicates Betty was exercising undue influence upon Milton once she moved in with him in 2013. While the major gift from the 2015 will had changed, Betty became sole executor in the 2018 will. At the time, and I understand up to the present, Betty is living in the Home Property rent free. At the time this litigation was commenced it is a matter of common sense that Milton would not have been expected to live very much longer. He had not earned farm income from the lands for over 20 years. He still lived in the Home Property. The fruits of the litigation would ensure mostly to his beneficiaries and not to Milton.
[74] This leads me to conclude that Betty, as the person who was concurrently enjoying most of the rights Milton did have to the Home Property, was unduly influencing Milton to make the claims he did in this action. I do not see it as any coincidence that in 2015, the will Milton had made mostly benefitted Betty. This leads me to discount her evidence at this trial as being completely self-serving and not persuasive of the conclusions urged upon me in the plaintiff’s submissions. The plaintiff’s case is not about asserting rights that would benefit Milton. The plaintiff’s case is about asserting rights that would benefit Betty, Cliff, Richard and Debra. Chief beneficiary in my view is Betty. Her evidence was in any event unpersuasive as to the theories put forward in final submissions by counsel for the plaintiff.
[75] Debra, Allen and Joan are accused by the plaintiff of conspiracy and fraud. There is no evidence given in this trial that would persuade me to that conclusion. None. The plaintiffs have not met their burden in regard to Issue 1. In my view, all the evidence in this trial does not create an inference of fraud to shift the evidentiary burden to any of the defendants.
[76] For the aforementioned reasons, in answer to Issue 1, I find Milton did intend to, and did in fact direct Debra to transfer all of his lands to the Jolicouers. In my view this finding leads to a conclusion that all the plaintiff’s claim should be dismissed with costs.
[77] However, if I am wrong in this conclusion, I move to Issue 2.
Issue 2. What is the effect of the Jolicouers only paying $70,000.00 or 66% of the purchase price on closing?
[78] In my view, the answer to this issue is straight forward. The Jolicouers were in breach of the contract for the sale of land when they did not tender the full purchase price on closing in 1997. Milton had a cause of action against Allen and Joan on September 12, 1997. This short answer does not create a basis to grant any of the relief requested by the plaintiff. I now turn to a consideration of Issue 3.
Issue 3. Does a limitation period bar this action?
[79] The short answer to the question on issue 3 is yes. I find the plaintiff’s action is barred by the operation of ultimate limitation period contained in section 15(2) of the Limitations Act 2002, S.O. 2002 c. 24 (the Limitations Act). Section 15(2) provides as follows;
Ultimate limitation periods
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. 2002, c. 24, Sched. B, s. 15 (1).
General
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place
[80] I find Milton does not fit any exceptions to this ultimate limitation period contained in section 15(4). As I have found previously in this judgment, there was no wilful concealment of the transactions and at all material times Milton was capable of managing his property.
[81] I make this finding based on the fact that Milton did receive $70,000.00 in consideration for the transfers. The transfers were registered on title. Milton had counsel acting for him on the transaction. In my view, Milton knew or ought to have known on September 12, 1997, that the Jolicouers were in breach of contract. Contrary to the submissions of the plaintiff I do not agree that Milton only became aware of the transactions in 2015.
[82] The fact that Allen was working all the properties after September 1997 is obvious and notorious evidence that he, and not Milton, was in possession of the lands except the Home Property. Milton was in the process of “retiring” as of 1997. I am aware from my former law practice in a community in Central Ontario with a large rural population, that most farmers will never say they are “retired” until they are placed in a pine box six feet underground. On that measure Milton did not formally retire until August 13, 2018.
[83] Nevertheless, Milton did not declare any farm income after 1997. He did not pay the property taxes for the lands after 1997. This is strong indicia that Milton no longer was actively carrying on the business of farming. This is an action completely consistent with his transferring the lands to someone else and his being aware that this had occurred.
[84] The plaintiffs did not produce Milton’s tax returns. For me this is evidence consistent that Milton had accepted the fact he had sold his lands and was leaving it to Allen and Joan to actively farm the lands of which they were now the owners. All of Allen’s actions in working the lands would have made it quite plain to everyone, including Milton, that Allen had acquired some superior right in the property to do this.
[85] Allen and Joan point to substantial improvements to the lands, buildings and equipment they have paid for. They point to having paid the property taxes for the lands since 1997. Milton was no longer getting the proceeds from the sale of cattle that were being pastured on lands formerly owned by him. Allen’s evidence that he improved the lands by purchasing new equipment, adding new buildings, and paying for fences was not shaken on cross examination. It is clear to me on the evidence that Allen’s efforts improved the lands at issue are contrary to the plaintiff’s theory that Milton was unaware of Allen and Joan’s ownership interests. What happened on the farms lands after 1997 are consistent with the fact that Milton did not own the lands anymore. It just does not make sense for the plaintiff to suggest that after 18 years of Allen working the lands in plain sight, that Milton just woke up to realize his lands had somehow “been taken from him”.
[86] In my view, the ultimate limitation period of section 15(2) operates to bar Milton and his estate from any claims arising from this breach of contract in 1997. Counsel for the defendants raised a number of other limitation defences based on other shorter limitation periods contained in the Limitations Act as well as the Real Property Limitations Act, R.S.O. 1990 c. L. 15 (RPLA). These limitations expired earlier than the ultimate limitation period I find applies to this case. Therefore, I do not see it as necessary to address those arguments.
[87] In my view, any of Milton’s claims asserted in this action expired on September 11, 2012 at the latest. Any claims he or his estate had against any of the defendants were brought outside of the ultimate limitation period provided by the Limitation Act. On this basis, the plaintiff’s claim should be dismissed.
Issues 4 through 6
[88] In my view, a consideration of Issues 4 through 6 as stated by the plaintiff require first a finding that Milton did not authorize the transfers either because he simply did not or because he was tricked in to doing so by Debra, Allen and Joan. As I have stated above, the evidence does not lead to such a conclusion. I would see no other basis upon which to “invalidate” the transfers. Issue 4 is therefore moot.
[89] In regard to Issue 5, Milton had a cause of action that was extinguished by the operation of the ultimate limitation in the Limitations Act. Even if Milton convinced himself or was convinced by somebody else in 2015 that he should “get his land back”, the fact the transfers were done 18 years before on Milton’s instructions, for good and valid consideration, were registered on title and there was no evidence of fraud or conspiracy completely defeats the plaintiff’s claim.
[90] As far as Issue 6 goes I have found Debra acted on Milton’s instructions. Issue 6 is now moot.
[91] I note that in final submissions the plaintiff added what I viewed as a new claim. It proposed that in the event the court was prepared to grant the vesting relief requested that there would be a corresponding order that the Estate pay $70,000.00 to either to the Accountant of the Superior court on account of this action or directly to Allen and Joan. This claim was not included in the pleadings. The Estate did not move to amend its claim to include this claim. As this new claim would require a favourable finding for the plaintiff in respect of issues 1, 2 and 3, I see no basis to give further consideration to this submission.
The Counterclaim of Allen and Joan
[92] In 2015 Milton severed the joint tenancy on the Home Property. Allen and Joan claim this was a breach of the contract of sale of land from 1997. I do not find this counterclaim has any merit for the following reasons.
[93] There is nothing in the written contract for the sale of the lands in 1997 tendered as evidence on this trial that indicates Milton agreed never to sever the joint tenancy created by the transfer of September 1997. I see nothing in the evidence that would otherwise imply such an agreement written or otherwise.
[94] The evidence was clear that Allen has been working the farmlands contained in the transfers since 1997. However, those efforts do not create some corresponding obligation on the part of Milton not to sever the joint tenancy for the Home Property. In my view, the fact that Milton bargained to remain as a joint tenant on the Home Property strengthens the position that the transaction at first instance was legitimate and not a fraud. Milton retained an independent right to occupy his home together with Allen and Joan. He could do so either as a joint tenant or a tenant in common. In fact, that is what happened. He stayed there and Allen and Joan lived across the road. In my view, this was a part of the convincing evidence why the plaintiff’s claim should be dismissed as having no air of reality. However, it does nothing to assist Allen and Joan in their counterclaim.
[95] The land transfers were clear and unequivocal in 1997. The deal was understandable and not unreasonable. Allen wanted to work the farm, none of the other siblings were interested and Milton wanted to stay in his house. The deal provided Milton retained significant property rights in his home. That made commercial sense.
[96] It does not now lie in Allen and Joan’s mouth to ask the court to enforce what works for them on the plain language of the agreement but then impose some commercially unreasonable and unsupportable terms on Milton. If Allen and Joan had wanted to ensure Milton would not sever the joint tenancy as long as they remained joint tenants, they could have expressly bargained for that. They did not.
[97] For these reasons Allen and Joan’s counterclaim is dismissed.
Costs
[98] The plaintiff has made claims sounding in fraud and conspiracy. I agree with the submissions of counsel that these pleas were not properly plead at first instance. Nevertheless, the claim in total has been dismissed. The possibility exists for a finding of substantial indemnity costs both against the estate and Betty personally as estate administrator. I heard evidence that little has been done to administer Milton’s estate to date. I expect there will be further litigation on the horizon for this family if the parties continue to take hard line positions with each other. I say this because there is now an opportunity to settle the issue of costs without a further attendance if after having gone through this entire experience and seen the result, those involved realize that now is the time to get things wrapped up and move on with life.
[99] If the parties cannot agree on costs, I invite counsel to make an appointment for a case conference to set a date and method for costs submissions. If there were offers to settle that would engage the provisions of Rule 49.10, I would be pleased to review them at the case conference.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: August 4, 2022
COURT FILE NO.: CV-17-12-00
DATE: 2022-08-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Betty Scheibler as the Litigation Estate Administrator for the Estate of Milton Edward Westover, deceased
Plaintiff
- and -
Joseph Allen Jolicouer, Joanie Marie Jolicouer aka Joan Marie Jolicouer and Debra Lee Westover-Morriseau
Defendants
TRIAL JUDGMENT
Fitzpatrick J.
Released: August 4, 2022