Court File and Parties

COURT FILE NO.: CV-21-00658477-00ES DATE: 20240430

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GIUSEPPE CAMPO also known as JOE CAMPO in his capacity as Estate Trustee of the Estate of Maria Campo also known as Marietta Campo, and in his personal capacity Applicant

– and –

MELINDA LONGO also known as MELINDA LOUISA CAMPO, GRAZIA CAMPO also known as GRACE CAMPO, FELICE CAMPO, FRANCO CAMPO and RITA PALANDRA also known as RITA MARIA CAMPO Respondents

Counsel: Matthew Bradley, for the Applicant, Giuseppe Campo Paul Gemmink, for the Respondent, Melinda Longo

HEARD: April 4, 2024

Reasons for Judgment

B. DIETRICH J.

[1] In this application, the applicant, Giuseppe Campo (the “Applicant”), alleges that the respondent, Melinda Longo (the “Respondent”), while acting as one of three attorneys for property for the now late Maria Campo, also known as Marietta Campo (“Maria”), breached her fiduciary duties and unjustly enriched herself.

[2] Specifically, the Applicant alleges that the Respondent added herself as a joint account holder of Maria’s Royal Bank of Canada (“RBC”) accounts (the “RBC Accounts”) and a Toronto Dominion Bank (“TD”) account (the “TD Account”), and that the Respondent arranged to have Maria designate the Respondent as the sole beneficiary of a TD Tax-Free Savings Account (the “TD TFSA”). The Applicant also alleges that the Respondent arranged for the sale of one of Maria’s real properties to the Respondent’s brother, Franco Campo (“Franco”), but the Respondent never accounted for the sale proceeds. The Applicant further alleges that, subsequent to Maria’s death, the Respondent failed to disclose relevant documents relating to Maria’s property.

[3] Among other orders, the Applicant seeks: an order requiring the Respondent to pass her accounts for the period beginning when the Respondent began using Maria’s continuing power of attorney for property and ending on the date of Maria’s death; an order that the Respondent has no legal or beneficial interest in the RBC Accounts, the TD Account, or the TD TFSA; an order that the designation of the Respondent as the sole beneficiary of the TD TFSA is invalid and of no force or effect; an order that the said bank accounts and TFSA form part of Maria’s estate (the “Estate”); and an order that the Respondent produce documents relating to Maria’s property and the Estate, which are in the Respondent’s possession and control.

[4] The Respondent obtained numerous extensions in order to file responding material to the within application, but she never filed any. Therefore, she could not be cross-examined. The Respondent never cross-examined the Applicant on his material, leaving his evidence uncontroverted.

[5] The Respondent filed a factum in advance of this hearing, in which she conceded, for the first time, that the RBC Accounts and the TD Account are assets belonging to the Estate. Therefore, the only issues remaining in dispute are whether the Respondent is required to produce her accounts for the period during which she was acting as Maria’s attorney for property and whether the Respondent is entitled to the TD TFSA, as the designated beneficiary of it.

[6] For the reasons that follow, I find that the orders sought by the Applicant should be granted.

Background Facts

[7] Maria, a widow, died on May 14, 2018. She was survived by her six children: the Applicant, the Respondent, Franco, Grazia Campo (“Grazia”), Felice Campo, and Rita Palandra. Under the terms of Maria’s will, apart from two specific bequests, she divided the Estate among her six children equally.

[8] Maria had little formal education. She completed grade 5 or 6 in Italy. Following her immigration to Canada, she never studied English or learned to read or write in English. As evidenced by admission notes taken at Chartwell Trilogy Long Term Care Home (“Chartwell”), where Maria resided prior to her death; by notes taken at Scarborough Hospital; by information included on a Human Rights Tribunal of Ontario application (the “HRTO Application”); and by a letter from the Respondent’s counsel to the Applicant’s former counsel in which the former advised the latter that Maria could neither read nor speak English and all correspondence to Maria should be translated into Italian, Maria’s ability to understand English was limited.

[9] Maria moved into Chartwell on or about December 15, 2015. She resided there until her death. According to the Applicant’s unchallenged evidence, when Maria moved into Chartwell, she was suffering from dementia, hypertension, Parkinson’s disease, diabetes, depression, and anxiety. Maria was also blind in one eye and sufficiently hearing impaired so as to require hearing aids.

[10] On June 17, 2016, a social worker at Chartwell conducted a Mini Mental State Examination (“MMSE”) on Maria. A member of the Chartwell staff assisted by translating the questions from English to Italian. Maria scored 17 out of 30. Maria was not able to identify the month, the season, the province in which she was living, the date, or the day of the week.

[11] On or about September 9, 2016, the Respondent filed the HRTO Application alleging that RBC discriminated against Maria by insisting that Maria attend personally at the branch to transfer her RBC TFSA to another financial institution. In the HRTO Application, the Respondent described Maria as unable to walk, confined to a wheelchair/bed, and the Respondent explained that following Maria’s husband’s death (on May 12, 2015), Maria’s health declined rapidly, such that she was then completely immobile and incontinent, and required 24-hour care.

[12] On April 14, 2014, Maria had appointed her late husband, Giovanni Campo (“Giovanni”), as her attorney for property in a continuing power of attorney for property, and her attorney for personal care in a power of attorney for personal care. She appointed the Applicant, the Respondent, and Grazia as her alternative attorneys for property and attorneys for personal care.

[13] Giovanni never acted under either power of attorney. Following his death in 2015, despite the fact that three of Maria’s children were appointed to act, the Applicant’s evidence is that the Respondent acted unilaterally as Maria’s attorney for property.

[14] The Respondent’s failure to inform or seek the consent of her co-attorneys caused the Applicant to retain counsel. On June 29, 2017, the Applicant’s counsel sought from the Respondent information and documentation relating to Maria’s assets, including copies of statements for all joint accounts.

[15] The Respondent’s counsel responded to the request on July 11, 2017 and October 6, 2017. He confirmed the entitlement of the Respondent’s co-attorneys to the information and account statements but stated that the Respondent would only provide financial statements for the preceding three months. The Respondent declined to disclose any information relating to an insurance claim she had commenced on Maria’s behalf respecting Maria’s residence.

[16] The Applicant’s counsel wrote to the Respondent’s counsel again, reiterating his request for information, but he got no response.

[17] The Applicant resigned as an attorney for property on September 27, 2017.

[18] Following Maria’s death, the Applicant and Grazia, as Maria’s Estate Trustees, retained BMO Trust to assist them in the administration of the Estate. BMO Trust wrote to the Respondent requesting all documentation in her possession with respect to Maria’s financial matters. The Respondent did not respond to this request.

[19] The Applicant’s evidence is that Maria intended to treat her children equally, as evidenced by the terms of her will.

[20] At the time of Maria’s death, she owned a residence, with an estimated value of $830,000, and personal effects. She also owned the RBC Accounts and the TD Account, jointly with the Respondent, and the TD TFSA. These accounts, collectively, had a value of approximately $261,000 at the time of Maria’s death.

[21] Both RBC Accounts had been held jointly by Maria and her late husband until his death when they became Maria’s accounts. At some point after February 6, 2016, the Respondent was added as a joint account holder on the RBC Accounts.

[22] Giovanni had opened a TFSA at RBC, and he designated Maria as the beneficiary. The RBC TFSA became Maria’s on Giovanni’s death. However, in or about July 2016, the Respondent arranged for the transfer of the RBC TFSA to a new TFSA at the TD Bank, and the Respondent was named as the sole beneficiary of the TD TFSA. At Maria’s date of death, the TD TFSA had a value of $54,310.70.

[23] Based on documentation produced by TD Bank, the TD Account and the TD TFSA were opened on or around July 26, 2016. Latia Bastas (“Ms. Bastas”) was the TD representative who met with Maria to assist with the opening of these accounts. According to the Applicant’s undisputed evidence, Ms. Bastas’s husband was a co-worker of the Respondent, and the Respondent’s family and the Bastas family had become good friends. Ms. Bastas’s main branch was in Bradford, Ontario, which was some distance from Maria, who was then residing at Chartwell in Scarborough, Ontario.

[24] Ms. Bastas met with Maria and the Respondent approximately one month after Maria had scored only 17 out of 30 on the MMSE.

[25] The TD documentation dated July 26, 2016, including a Net Worth Statement, confirms that Maria directed the transfer of a GIC maturing at CIBC, worth approximately $86,800, to the TD Account. The TD Account was opened in the joint names of Maria and the Respondent.

[26] The same Net Worth Statement refers to Maria’s RBC TFSA and Maria’s direction to have it transferred to the TD Bank.

[27] Parts of the TD form regarding the TD TFSA that was finally produced to the Applicant were redacted, including the name of the designated beneficiary. The Applicant contends that the designated beneficiary is the Respondent. The Respondent does not deny that she is the designated beneficiary. In her factum, the Respondent states: “Ms. Longo was named as sole beneficiary of the TD TFSA in dispute on July 26, 2016”, and she cites the Applicant’s affidavit as authority for this statement.

[28] Handwritten notes on the TD documentation show that Maria was “leaving everything equally to her children” and notes “1/6 to each”.

[29] Following Maria’s death, the Respondent ignored requests for information and documentation relating to the joint accounts and the TD TFSA. For example, BMO Trust sent a letter dated September 24, 2018, seeking supporting documentation relating to the RBC Accounts, the TD Account, and the circumstances under which the Respondent became a joint account holder. Follow-up letters from BMO Trust, dated October 5, 2018 and October 28, 2018, went unanswered. Based on BMO Trust correspondence dated November 6, 2018, it appears that the Respondent took the position that she had not acted as Maria’s attorney for property and had no documentation regarding Maria’s assets.

[30] On November 23, 2018 and in February 2019, BMO Trust requested that the Respondent authorize the payment of certain Estate expenses from the RBC Accounts, but the Respondent failed to respond or sign the direction. A similar request was made and refused in April 2019. But, at that time, the Respondent did send BMO Trust Company a 2018 TD T5 tax slip and stated that she had no other tax slips for Maria.

[31] On July 29, 2019, BMO Trust sent letters to both the Respondent and her counsel asking for the Respondent’s position regarding the joint accounts and the TD TFSA. Neither responded.

[32] The Applicant’s counsel sent a letter to the Respondent’s counsel on August 4, 2022, requesting documents relating to the Respondent’s administration of Maria’s property, qua attorney for property, and the Respondent’s position on the joint accounts and the TD TFSA.

[33] Until immediately prior to this hearing, the Respondent never clarified her position regarding these accounts other than to state that they all belonged to her.

[34] On May 19, 2023, I ordered disclosure of certain financial records relating to Maria. The statements revealed that on April 23, 2019, when the RBC Accounts were frozen, two withdrawals were made from one of the RBC Accounts in the amounts of $2,602.56 and $12,958.53.

[35] Further investigation revealed that the Respondent had, without any authority, withdrawn these amounts to pay The Scarborough Hospital $2,594.06 and to pay her counsel $12,950.03.

Issues

[36] The issues in this application are as follows:

1. Should the Respondent be ordered to pass her accounts for the period during which she acted as Maria’s attorney for property?
2. Does the Respondent hold the RBC Accounts and the TD Account on a resulting trust for the Estate?
3. Does the Respondent hold the TD TFSA on a resulting trust for the Estate or, in the alternative, should the beneficiary designation be invalidated due to Maria’s incapacity to manage property and the Respondent’s undue influence over Maria?

Should the Respondent be required to pass her accounts as an attorney for property?

[37] In accordance with s. 42(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), the court has the authority to compel an attorney for property to pass their accounts.

[38] The grantor, or the estate trustee standing in the place of the grantor, may compel a passing of the accounts by the attorney: SDA, s. 42(2); Angeloni v. Angeloni, 2017 ONSC 7344, 38 E.T.R. (4th) 258, at para. 28. So too can others listed in s. 42(4) of the SDA compel such a passing. Those others include the grantor’s guardian, the Public Guardian and Trustee, the Children’s Lawyer, and “[a]ny other person, with leave of the court.”

[39] Grazia was removed as a co-Estate Trustee of the Estate by court order dated November 29, 2023. The Applicant was appointed as the sole Estate Trustee of the Estate in the same order. As such, he has standing to seek the relief sought in the within application, without leave.

[40] If leave is required because the Applicant was not the sole Estate Trustee of the Estate when he commenced the within application, I would grant leave. Based on the Applicant’s evidence, the Applicant, as “any other person”, has satisfied the test for leave pursuant to paragraph 6 of subsection 42(4) of the SDA. The test for granting leave allowing “any other person” to bring such an application is two-fold: 1) the applicant must have a genuine interest in the welfare of the grantor of the power of attorney, and 2) it must be reasonable to believe that a court hearing the matter may order the relevant attorney to pass accounts. Factors that have been considered in that regard include:

i. the age of the donor of the power; ii. the capacity of the donor of the power; iii. a refusal by the donee of the power to provide the would-be applicant or applicants with information concerning the particulars of his or her actions; iv. the conduct of the donee of the power in prohibiting or limiting contact between the donor of the power and the would-be applicant or other family members; and/or v. an amendment of the testamentary documents of the donor of the power in favour of the donee of the power: Van Ruymbeke v. Van Ruymbeke, 2023 ONSC 1212, at para. 32, citing Ali v. Fruci (2006), 22 E.T.R. (3d) 187 (Ont. S.C.), at paras. 3-8; and Greaves v. Nigro, 2016 ONSC 44, at paras. 52-53.

[41] Regarding the first part of the test, the Applicant, as a co-Estate Trustee, with fiduciary obligations to all the beneficiaries of the Estate and, personally, as Maria’s son and a beneficiary of the Estate, has a genuine interest in the welfare of the donor of the power of attorney; and it is reasonable to believe that a passing of accounts would be ordered. Regarding the second part of the test, I note that Maria was 83 years of age at the time of her death, and she would have been 81 when she took the MMSE. Maria did not score well on the MMSE. Her low score suggests degradation in her cognitive function. Maria designated the Respondent, a donee of the power of attorney, as the beneficiary of the TD TFSA within weeks of having taken the MMSE. The Respondent was persistent in her refusal to provide the Estate Trustees of the Estate and their agent, BMO Trust, with information regarding her actions as attorney for property; and it is alleged that the Respondent was involved in Maria designating the Respondent as the beneficiary of the TD TFSA. The Respondent has not denied those allegations. I am satisfied that both branches of the test have been met in this case.

[42] The Respondent asserts that, irrespective of the Applicant’s standing to compel a passing of accounts, the Applicant cannot seek a passing of accounts because his claim for a passing of accounts is barred by the two-year general limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched B (the “Limitations Act, 2002”). The Respondent asserts that more than two years have passed between the time the Applicant, in his capacity as an attorney for property, allegedly discovered some facts that called into question the Respondent’s conduct as an attorney for property and the time he commenced the within application. The Respondent submits that, based on the Applicant’s evidence, these facts were discovered on June 30, 2017. The Respondent further submits that if the Applicant’s claim did not arise then, it arose, at the latest, on September 27, 2017, when the Applicant resigned as an attorney for property for Maria. The Respondent submits that, in either case, the Applicant is out of time because he brought his application to compel a passing of accounts more than three years later, on November 12, 2020. The Respondent argues that, according to the Limitations Act, 2002, the Applicant had only two years from his discovery of a possible claim against the attorney to compel a passing of accounts. The Respondent submits that the Limitations Act, 2002 applies to claims for an accounting.

[43] The Applicant’s evidence is that on or about June 30, 2017, he learned of a disturbing event that had taken place in February 2016 involving the Respondent. In July 2017, the Applicant obtained production of Chartwell’s Progress Notes, recorded on February 23, 2016, regarding the February 2016 event. The Chartwell Progress Notes stated that, after the Respondent’s visit to Maria that evening, staff recorded that Maria was crying and, when asked why, Maria said that her daughter made her sign some paper, that she was not feeling good about signing the paper, that she had been shaking, and that her daughter had screamed at her to sign. It is not clear from the evidentiary record that this information alone would be enough to suggest an act or omission that would have given rise to damages at that time.

[44] Further, I find that the Applicant has not brought the application to compel the Respondent to pass her accounts in his capacity as an attorney or former attorney for property. He brings this application as an Estate Trustee, and personally, as a beneficiary of the Estate. In my view, as an Estate Trustee of the Estate, he has a fiduciary duty to satisfy himself, on behalf of all beneficiaries of the Estate, that there has been no wrongdoing with respect to the management of Maria’s property by the Respondent. The opportunity for the Applicant, qua Estate Trustee or beneficiary, to bring an application to compel the Respondent to pass her accounts did not arise until Maria’s death, at the earliest. The opportunity would arise even later if, as the Respondent submits, the Applicant was precluded from pursuing such an application until his co-Estate Trustee was removed. If the Respondent is correct that the Applicant, as co-Estate Trustee, could not unilaterally compel a passing of accounts, then the Applicant was precluded from seeking such a passing of accounts until November 29, 2023, when Grazia was removed as an Estate Trustee, and the Applicant was appointed as the sole Estate Trustee.

[45] The Applicant relies on the decision of the Court of Appeal for Ontario in Armitage v. The Salvation Army, 2016 ONCA 971, 406 D.L.R. (4th) 563, as support for his argument that the Limitations Act, 2002 does not apply to his request for a passing of accounts. In that case, the court considered the application of Limitations Act, 2002 in the context of a passing of accounts and a claim for compensation by an attorney for property and an Estate Trustee of an estate. The Court of Appeal commenced its analysis by stating, at para. 19, that the “Limitations Act, 2002 does not apply because compensation for an attorney for property through the passing of accounts process does not constitute a ‘claim’ within the meaning of the Limitations Act, 2002.”

[46] In Armitage, the Court of Appeal concluded, at paras. 27-29, that a passing of accounts, initiated by the attorney, is not a “claim” because a claim is defined in the Limitations Act, 2002 as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” And an attorney, in seeking court approval of the passing of accounts, is not seeking redress for any loss, injury, or damage. Rather, he or she is seeking approval from the court of his or her actions in managing the property. Thus, the passing of accounts does not fit within the first part of the Limitations Act, 2002 definition of claim. The Court of Appeal also found that an application for the passing of accounts does not fit within the second part of the statutory definition of claim because, where the definition speaks of an act or omission, it must surely refer to an action taken or not taken by a third party that has the effect of causing loss, injury, or damage. In the result, the Court of Appeal held that a passing of accounts by an attorney under the SDA is not subject to the two-year general limitation period found in the Limitations Act, 2002.

[47] The Court of Appeal for Ontario (sitting as Div. Ct.), in Wall v. Shaw, 2018 ONCA 929, 43 E.T.R. (4th) 1, at para. 48, held that interpreting s. 4 of the Limitations Act, 2002, as capturing r. 74.18(7) notices of objection to accounts would risk insulating an estate trustee’s management of an estate from effective scrutiny.

[48] However, as noted by Penny J. in Estate of Celeste Dos Santos (Re), 2022 ONSC 3824, at para. 42, the Court of Appeal in Armitage did not exclude the application of the Limitations Act, 2002 to the commencement of a procedure to require a passing of accounts. The SDA does not impose any obligation on an attorney to pass accounts. Section 42 of the SDA permits the court to order accounts to be passed, and it permits an attorney to apply to pass their accounts. In Armitage, at para. 22, the Court of Appeal made a similar observation that “where an attorney for property has not commenced an application for the passing of accounts, an interested party may bring an application under s. 42(1) of the SDA to compel the passing of accounts.”

[49] In Dos Santos, at para. 42, Penny J. states that “Armitage has no application, however, to an originating process brought for the purpose of compelling an attorney to pass accounts.” In Dos Santos, the application compelling a party to pass his accounts as a de facto attorney for property was brought after an eight-year delay. Justice Penny left aside the question of limitation periods and found that it was unfair and unreasonable, in the absence of a good explanation for the delay, to expect the de facto attorney to prepare detailed accounts relating to events that took place so long ago, especially where there was no prima facie evidence of wrongdoing by the de facto attorney.

[50] The Applicant submits that the application process itself is not a “claim” for the purposes of the Limitations Act, 2002, irrespective of whether it is brought by the attorney herself or someone authorized to compel her to pass her accounts. The Applicant asserts that the court’s review of the attorney’s conduct is appropriate. Further, the Applicant asserts that without a passing of the accounts by the Respondent, especially in light of her refusal to produce documents, the Estate Trustee cannot confirm the assets or the liabilities of the Estate, confirm whether taxes have been paid, or confirm whether the Respondent has claimed compensation as an attorney, and if so, whether such compensation was appropriate. Without a passing of accounts, the Applicant submits that, as the sole Estate Trustee, he will be unable to ascertain acts or omissions by the Respondent, as attorney, that she may have concealed.

[51] The Applicant contends that if no impropriety is discovered in the passing of accounts process, the attorney will be discharged. However, the Applicant concedes that if, during the passing of accounts process, it is found that there was impropriety on behalf of the Respondent, as attorney, which the Applicant had discovered or ought to have discovered, but no claim was brought by the Applicant in respect of that discovery within the required time period, then the Applicant’s claim could be denied, at that time, if barred by the Limitations Act, 2002.

[52] I accept the Applicant’s submissions, and find that, based on the facts and circumstances of this case, the Respondent should be compelled to account for her actions as Maria’s attorney for property. The Respondent has adduced no evidence respecting her conduct as an attorney.

[53] In correspondence from BMO Trust to the Respondent dated November 6, 2018, it is implied that the Respondent took the position that she had not acted as Maria’s attorney for property. This position is inconsistent with representations made by the Respondent’s lawyer in correspondence to Grazia on March 16, 2018, in which the Respondent threatened to terminate Maria’s power of attorney and to apply to be appointed as Maria’s sole guardian of property. It is also inconsistent with a statement made in the HRTO Application, issued September 9, 2016, and authored by the Respondent, in which she disclosed that she “[had] been managing [her] parents’ finances for several years” and “[she was] a joint account holder for all the accounts other than the TFSA in question.”

[54] The Respondent argues that there is no proof that she was involved in the sale of Maria’s property to Franco, or that Maria did not attend to the sale herself. Based on the evidentiary record, I find, on balance of probabilities, that the Respondent was involved in the management of Maria’s property at least as early as the death of Giovanni. Accordingly, she is required to pass her accounts from May 12, 2015, to Maria’s date of death.

Does the Applicant hold the RBC Accounts and the TD Account on a resulting trust?

[55] In the Respondent’s factum, she conceded that she holds the RBC Accounts and the TD Account on a resulting trust for the Estate, as alleged by the Applicant.

[56] Accordingly, I find that the Respondent holds the RBC Accounts and the TD Account on a resulting trust for the Estate.

Does the Applicant hold the TD TFSA on a resulting trust, or should the beneficiary designation be invalidated owing to Maria’s incapacity to manage property and the Respondent’s undue influence over Maria?

[57] The Respondent does not concede that she holds the TD TFSA on a resulting trust, that Maria lacked testamentary capacity to manage her property, or that she unduly influenced Maria respecting the beneficiary designation on the TD TFSA.

[58] For the reasons that follow, the beneficiary designation should be invalidated, and the TD TFSA should form part of the Estate.

[59] There is conflicting precedent in Ontario on whether the presumption of resulting trust applies to a beneficiary designation. In Mak (Estate) v. Mak, 2021 ONSC 4415, this court held that the presumption of resulting trust did not apply with respect to a mother’s decision to designate her son as the beneficiary of her registered retirement income fund (“RRIF”). The court noted, at para. 44, that the presumption (of a resulting trust) in Pecore v. Pecore, [2007] SCJ No. 17, 2007 SCC 17, applies to inter vivos gifts. At para. 47, the court held that the Pecore presumption of a resulting trust did not apply to the beneficiary designation of the mother’s RRIF, and noted, at para. 46, that the whole point of a beneficiary designation is to specifically state what is to happen to an asset upon death, and noted, at para. 44, that s. 51 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, permits an individual to designate a beneficiary under a “plan”, and the beneficiary may enforce payment against the person administering the plan.

[60] By contrast, in Calmusky v. Calmusky, 2020 ONSC 1506, 60 E.T.R. (4th) 117, the court considered a father’s decision to designate his adult son as beneficiary of his registered retirement income fund and concluded that the presumption of resulting trust did apply. At para. 56, the court reasoned that a) the presumption of resulting trust applies to gratuitous transfers; b) the beneficiary designation is a gratuitous transfer; and c) the Supreme Court of Canada (in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 26) has held that, in scenarios where the transferor has died, the “additional jurisdiction” for imposing the legal burden on the transferee is that the transferee is better placed to adduce evidence about the circumstances of the transfer.

[61] The Respondent has declined to adduce any evidence with respect to the circumstances surrounding Maria’s designation of the Respondent as the beneficiary of the TD TFSA. She asserts that there is no evidence to suggest that she was present when Maria made the beneficiary designation. The Respondent declined to disclose to her co-attorneys for property that Maria’s RBC TFSA had been transferred to the TD and that a new beneficiary designation had been made. The Respondent withheld all documents concerning the TD TFSA and the beneficiary designation. These actions make it difficult for the court, the Estate Trustee, and the beneficiaries of the Estate to rely on any circumstantial evidence of Maria’s intent. The notes taken by the TD representative at the time the designation was made reflect Maria’s estate planning intention to treat her children equally such that each would receive a one-sixth share of the Estate.

[62] The Applicant asserts that the Respondent deliberately chose not to file evidence so she could avoid cross-examination. The Respondent elected not to cross-examine the Applicant. Accordingly, the Applicant’s evidence is uncontroverted.

[63] Based on the evidentiary record, I find that, in this case, the beneficial ownership of the TD TFSA can be resolved without resorting to the doctrine of resulting trust. For the reasons that follow, I find that the beneficiary designation must be invalidated based on Maria’s probable lack of capacity to manage her property when the beneficiary designation was made and the Respondent’s undue influence over her.

[64] A testator is presumed to have the requisite knowledge, approval, and testamentary capacity to make a testamentary gift. However, this presumption can be rebutted if the evidence discloses suspicious circumstances on a balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876 (“Vout”).

[65] In Vout, at para. 25, the Supreme Court of Canada held that suspicious circumstances may arise in any of the following ways: “(1) circumstances surrounding the preparation of the [testamentary gift], (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.”

[66] If the evidence establishes the presence of suspicious circumstances, the burden of proving the testamentary gift reverts to the propounder: Vout, at para. 27.

[67] Based on the evidentiary record, I find that there were suspicious circumstances in the case of the beneficiary designation made by Maria in favour of the Respondent. There were suspicious circumstances around the signing of the beneficiary designation. The Applicant’s undisputed evidence is that the Respondent orchestrated the transfer of Maria’s RBC TFSA to TD with the assistance of a family friend who worked at TD. The transfer was done at a time following Maria’s move to Chartwell, when it appears that the Respondent was acting as an attorney for property for Maria. But in breach of her statutory duty, the Respondent did not consult with her co-attorneys for property regarding this transaction. The beneficiary designation was contrary to Maria’s testamentary intention as manifested in her will, which was that each of her children would receive a one-sixth share of the residue of the Estate, and contrary to the notes taken by the TD representative, which reflected the same testamentary intention as expressed by Maria in her will.

[68] I also find that there were suspicious circumstances calling into question Maria’s capacity to make the designation. Based on the uncontroverted evidence, when Maria was admitted to Chartwell, she was suffering from dementia, depression, and anxiety. Maria took the MMSE on June 17, 2016. She scored only 17 out of 30, and was unable to identify the month, the season, the province in which she was situate, the date, or the day of the week. Approximately five weeks later, on July 26, 2016, Maria made the beneficiary designation. In addition to the impediments to Maria’s cognitive function as reflected in the low MMSE score, the forms presented to Maria for her signature were written in English. The evidence shows that Maria was not able to read English. The Respondent herself disclosed this fact in the HRTO Application, where she stated that Maria is “Italian speaking and cannot communicate in English”; and the Respondent’s counsel wrote to the Applicant’s former counsel suggesting that all correspondence to Maria be translated into Italian because Maria “neither reads nor speaks English.” There is no evidence to demonstrate that the TD forms regarding the beneficiary designation were translated for Maria’s benefit before she signed them.

[69] Where suspicious circumstances are found, the onus to prove the testamentary gift shifts to the propounder of the testamentary gift, the Respondent. However, the Respondent adduced no evidence to prove Maria intended to make a gift of the TD TFSA to her.

[70] In argument, the Respondent challenged the Applicant’s evidence. She alleged that much of it is hearsay and that the Applicant’s evidence was uncorroborated and, therefore, inadmissible, as set out in s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23.

[71] Section 13 of the Evidence Act 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.

[72] The Court of Appeal for Ontario has held that when the transferor of a gift is deceased, corroborative evidence is required under s. 13 of the Evidence Act: Foley (Re), 2015 ONCA 382, 125 O.R. (3d) 721, at para. 30. See also Burns Estate v. Mellon, 48 O.R. (3d) 641 (C.A.), at para. 6.

[73] I find that the Applicant did corroborate his evidence. He did not rely on his word alone.

[74] The Court of Appeal has instructed that “[t]he corroborating evidence can be direct or circumstantial, and it can consist of a single piece of evidence or several pieces considered cumulatively”: Foley, at para. 29. Attached to the Applicant’s affidavit are several pieces of corroborative evidence. These include the admission notes from Chartwell, which would qualify as business records provided by professional caregivers and nurses. The Respondent had seven days’ notice of this evidence, as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). To the extent that the notes qualify as a report from a medical practitioner, under the Rules, the notes can be relied on without the testimony of the practitioner if ten days’ notice is given. The Applicant submits that the 10-day notice requirement was also met in this case. The Applicant also corroborated his evidence with the HRTO Application, which was prepared by the Respondent.

[75] The Applicant further submits that on an application, hearsay evidence is admissible for limited purposes. I agree. The Rules provide for limited use of hearsay evidence in an affidavit filed on an application. Rule 39.01(5) of the Rules provides as follows:

An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

[76] In my view, the affidavit evidence tendered by the Applicant is corroborative for the purposes of s. 13 of the Evidence Act and falls within the purview of r. 39.01(5).

[77] Even if such evidence is given little weight, it can be used to corroborate.

Disposition

[78] For the foregoing reasons, the Applicant has succeeded on the within application, and an Order shall issue in the form attached hereto and signed by me.

[79] The Order is effective as of April 30, 2024, and it does not need to be entered.

Costs

[80] The Applicant was successful in obtaining the relief sought in his application, and he is entitled to costs. The Respondent submits that she has made offers that could influence the costs award. The parties are strongly encouraged to agree on the matter of costs. If the parties cannot agree, the Applicant shall submit written costs submissions not exceeding three pages (excluding a costs outline and any offer to settle) within 14 days of these reasons. The Respondent shall submit similar written costs submissions 14 days thereafter. Reply costs submissions may only be made with leave.

Dietrich J.

Released: April 30, 2024