Court File and Parties

COURT FILE NO.: CV-24-00717640-00ES DATE: 20241114 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDA BRIDGEWATER, Applicant AND: ROBERT CHARLES STOCKEY, ROBERT WONG, ALLEN CHURCH, CHERYL LANG, THE CANADIAN NATIONAL INSTITUTE FOR THE BLIND, CANADIAN GUIDE DOGS FOR THE BLIND and LIONS FOUNDATION OF CANADA DOG GUIDES, Respondents

BEFORE: M. D. Faieta J.

COUNSEL: Benjamin Arkin and Ashley Seeley, for the Applicant William S. Cord, for the Respondent Cheryl Lang Wendy Griesdorf, for the Respondent The Canadian National Institute for the Blind Tatyana Loeffler-Vulpe, for the Respondent Canadian Guide Dogs for the Blind Laughlin J. Campbell, for the Respondent Lions Foundation of Canada Dog Guides

HEARD: November 5, 2024

Endorsement

faieta J.

[1] Ronald Douglas Penrose died, at the age of 91, on September 18, 2023. He was never married and had no children. It also appears that he had no siblings, uncles, aunts or cousins. At the time of his death, Mr. Penrose lived in an apartment, had an investment account of about $800,000.00, a 2017 Lexus, and some jewelry.

[2] In his Last Will and Testament, dated July 2018, named an executor and an alternate executor both of whom have renounced this position. The applicant, Linda Bridgewater, lived in the same apartment building as the deceased and they were friends for about seven years before the deceased died. She stepped forward to administer his estate when she saw that it was not being administered. By Order dated July 16, 2024, Ms. Bridgewater was appointed as Estate Trustee During Litigation.

[3] In his Will, Mr. Penrose made two bequests.

[4] First, Mr. Penrose left Cheryl Lang the sum of $350,000.00. Ms. Bridgewater explains that Ms. Lang is a veterinary assistant at a veterinarian’s office where Mr. Penrose would take his cat. He told Ms. Bridgewater that Ms. Lang had been helpful and supportive when his cat had to be euthanized.

[5] Second, Mr. Penrose made the following bequest:

I leave to Guide Dogs of Canada the balance of my estate after all liabilities have been settled.

[6] Unfortunately, there is no entity called “Guide Dogs of Canada”. After his death, Ms. Bridgewater found a brochure published by the Canadian National Institute for the Blind (“CNIB”) on Mr. Penrose’s refrigerator. The cover of the brochure is reproduced below:

[7] The affidavit of Garrett Nenson of the Canadian National Institute for the Blind, sworn on October 22, 2024, states:

I am the Chief Revenue Officer at the Canadian National Institute for the Blind. …

The testator and the CNIB had a prior donor relationship before his death. He was a donor in 2021 and made recurring donations of $100 to the CNIB until he requested that he no longer make recurring donations. We sent him brochures and he had been on our email list during this time. For this reason, we are confident the testator intended to benefit the CNIB Guide Dog program in his description in his will.

Because of the specific language used in the testator’s will referencing Guide Dogs at clause 10 b of his will, the respondent charities in this estate have agreed to apply the funds toward programs for guide dogs, not service dogs, and we have agreed to an order to this effect.

[8] The affidavit of Edward Mann, sworn on October 29, 2024, states:

I am Chairman of the Board of Canadian Guide Dogs for the Blind …

Based on a plain reading of the words used by the deceased in his Will, the charity name, the Canadian Guide Dogs for the Blind is the most similar to the wording used by the testator, that being "Guide Dogs of Canada". Both refer to Canada and both use the words, Guide and Dogs.

In light of the language used in the testator's will and the background evidence provided by the Applicant, the respondent charities have agreed to share the residue of the estate equally, and to apply their respective shares of the funds towards programs for guide dogs, not service dogs, and we have agreed to an order to this effect.

I make this Affidavit in support of an Order granting relief that the interpretation of the words “Guide Dogs of Canada" used in the Last Will and Testament of Ronald Douglas Penrose, dated June 2018 shall be interpreted to mean The Canadian National Institute for the Blind, Lions Foundation of Canada Guide Dogs, and the Canadian National Institute for the Blind.

I also make this Affidavit in support of an Order granting relief for Linda Bridgewater, in her capacity as Estate Trustee of the Estate of Ronald Douglas Penrose, to administer the estate as though clause 10(b) of the will named Canadian Guide Dogs for the Blind, the Canadian National Institute for the Blind, and Lions Foundation of Canada Dog Guides in equal shares and specify the condition that such gift be used for the purpose of raising, training and pairing guide dogs with individuals who are blind or partially sighted.

[9] In April 2024, Ms. Bridgewater commenced this application for, amongst other things, an order interpreting the gift of residue to the “Guide Dogs of Canada” or alternatively, an order rectifying the Will by deleting “Guide Dogs of Canada” and replacing it with the proper name of the organization intended by the deceased, or in the future alternative, a Cy Pres Order sufficient to fulfil deceased’s general charitable intention.

[10] In her affidavit sworn October 4, 2024, Ms. Bridgewater states:

I have recently become aware of the existence of two Guide Dog organizations that have not been named as respondents in this application. The organizations are the British Columbia Guide Dog Services (also known as BC & Alberta Guide Dogs) and Fondation Mira Inc. which serves Quebec.

I have confirmed the names of the organizations by viewing the listings on the Government of Canada Registered Charity Search at https://apps.craarc.gc.ca/ebci/hacc/srch/pub/dsplyBscSrch. Printouts of the listings are attached as Exhibit “A” and Exhibit "B”.

Neither the British Columbia Guide Dogs Service nor Fondation Mira Inc. contain the word “Canada” or “Canadian” in their name, which does not align with the organization that Ron named in his will – “Guide Dogs of Canada”.

I have determined from its website that British Columbia Guide Dogs services only British Columbia and Alberta. I have attached a screenshot from its website https://bcandalbertaguidedogs.com/about-us/our-team/ as Exhibit “C”.

To the best of my knowledge, Ron had no connection to either British Columbia or Alberta.

I have determined from its website that Fondation Mira Inc. is based in Quebec and caters primarily to a Francophone community. I have a attached a screenshot from its website https://www.mira.ca/en/our-story as Exhibit “D”.

To the best of my knowledge, Ron did not have any connection to Quebec nor to the Francophone community.

[11] The principles related to the interpretation of a will were described by Brown, J.A. in Ross v. Canada Trust Company, 2021 ONCA 161, at paras. 36-41, as follows:

36 When interpreting a will, a court's task can be stated simply: it is to determine the testator's actual or subjective intention as to how she intended to dispose of her property: Trezzi, at para. 13.

37 The basic approach to the construction of a will was described by this court in Burke (Re), [1960] O.R. 26 (C.A.), at p. 30:

Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

38 While a key element of Burke's approach to will interpretation is, of course, studying the document's contents — not only the provisions in dispute but the entire will — its approach also includes the use of what is known as the "armchair rule". Ian Hull and Suzana Popovic-Montag, Feeney's Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46, describes the "armchair rule" as follows:

In the first instance, the court may not be convinced that the testator's intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.

The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the "armchair rule".

39 Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members: Stuart v. Stuart, 2019 ONSC 4328, 49 E.T.R. (4th) 306, at para. 9; Dobson Estate v. Dobson (2000), 32 E.T.R. (2d) 62 (Ont. S.C.), at para. 8; Shamas (Re), [1967] 2 O.R. 275 (C.A.), at p. 279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

40 In the past, courts usually have resorted to the "armchair rule" where the testator's intention cannot be ascertained from the plain meaning of the will's language: Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.

41 More recently, courts are treating the "armchair rule" as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler, at para. 14:

Feeney's [Canadian Law of Wills] concludes that "the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words" (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear . . .

[12] Applying the above principles, I find that Mr. Penrose’s intention cannot be determined solely from the plain meaning of the language that he used in the Will as there is no entity known as “Guide Dogs of Canada”. The closest similarly name entity is Canadian Guide Dogs for the Blind. However, the surrounding circumstances show that Mr. Penrose had made charitable donations to the CNIB, was on their email and mailing lists, and had a “CNIB Guide Dogs” brochure on his refrigerator at the time of his death. There were no similar connections to the Canadian Guide Dogs for the Blind or the other charities that have come forward. Applying the “armchair rule”, I find that Mr. Penrose intended to make his bequest to the Canadian National Institute for the Blind. Order to go accordingly.

Mr. Justice M. D. Faieta Released: November 14, 2024