COURT FILE NO.: CV-22-2258-00ES DATE: 2024 02 08

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: ESTATE OF BRANISLAV NIKOLIC, Applicant AND: NIKOLIC, Ben, Defendant

BEFORE: The Honourable Justice J. Trimble

COUNSEL: Christopher Sparling, for the Applicant David Bernstein, for the Defendant

HEARD: January 31, 2024

ENDORSEMENT

The Application

[1] The estate of Branislav Nikolic seeks a declaration that it owns a 1967 Mustang Cobra Convertible and an order that Ben Nikolic return it to the Estate.

[2] Ben asserts that Branislav sold the car to him in July 2020, over a year before he died in October 2021. The Estate contests this contract on many grounds including that it was not signed by the testator, and that there is, in fact, no agreement. In any event, the Estate contends that Ben’s claim must fail as his evidence is not corroborated by independent evidence as required by s.13 of the Evidence Act.

[3] I pause to note that neither party provided me with any caselaw in support of its/his position. Accordingly, I have conducted the research necessary to decide this case.

Facts

[4] Andrea Nikolic is Branislav’s son and estate trustee pursuant to a Will dated 12 August 2010. There is no issue as to the validity of the will. Ben is not a beneficiary under the Will.

[5] Branislav owned a 1967 Mustang Cobra convertible. He owned it for years. For long while before Branislav’s death the car sat in his garage, partially disassembled, while he worked on restoring it. There were many auto parts for the car in the basement of his home.

[6] Branislav died on 2 October 2021 of Covid related complications. At the time, Andrea was living in Calgary and Angelina, Andrea’s sister, also lived away.

[7] Shortly after Branislav’s death, Ben called Andrea to advise him of Branislav’s death, and also to advise Andrea that Branislav had sold the Cobra to him. This was the first that Andrea had heard of this sale. Ben demanded that Andrea release the car to him. Andrea did not agree and blocked Ben’s email address on his cell phone.

[8] On 12 December 2021, a Peel Region police officer called Andrea asking him to permit Ben access to the garage at Branislav’s house so that Ben could remove the Cobra. Andrea refused and told the officer that Ben would be trespassing if he entered the property to remove the car. When Andrea got to Branislav’s house on 24 December 2021, he found that the garage door lock had been broken or cut open and the car was missing. Andrea then unblocked Ben’s texts and found that Ben had taken the car. He retained counsel who wrote a letter to Ben and demanded return of the car. It has not been returned.

[9] In response to counsel’s demand letter, Ben produced an undated, handwritten document allegedly signed by Branislav and Ben which Ben said documented Branislav’s sale of the Mustang plus a spare motor and auto parts to him, after which Branislav would have the right to make the first bid on the purchase of the car. The interpretation of this agreement is at issue. The purported contract referred to selling a “1968 Mustang”, not a 1967 Mustang. This is the first time Andrea saw this document.

[10] In addition to the contract, Ben produced a statement of a bank transaction of 29 July 2020 showing that Ben purchased a bank draft for $20,000. The record noted no payee.

[11] In his affidavit, Ben explained that he and Branislav had been discussing Ben’s purchase of the Cobra for a long time. In July 2020, they reached an agreement which Ben put into writing, which both signed. Ben averred that “several weeks” after the agreement was reached, Branislav advised Ben that he would not accept a cheque in payment. He insisted on cash, payable on the weekend.

[12] Ben said that because there was a limit on what he could withdraw from his bank account in one day, he asked his friend, William Bussiere, if he had $20,000 in cash available to him. He did. Accordingly, Ben and Mr. Bussiere agreed that Ben would give Mr. Bussiere a bank draft for $20,000 in exchange for $20,000 cash which Ben would give to Branislav for the Cobra. Ben produced the receipt portion of the money order dated 29 July 2020, showing Mr. Bussiere as payee of the money draft.

[13] In the 15 months between the purported agreement and Branislav’s death, no steps were taken to complete the contract other than the purported payment of the money, an issue to which I will return. At Branislav’s death, the status of the Cobra was as follows:

a) the ownership, which was stored in Branislav’s safe-deposit box, remained in his name. It was never signed over to Ben. b) The car remained in the garage along with a spare engine for the car. Various car parts remained in Branislav’s home’s basement. c) Ben never asked for delivery of the car or its parts, d) Branislav never demanded that Ben remove the car and its parts from the house and garage. e) The car remained in the locked garage at Branislav’s home. Andrea had the key which he presumably found after Branislav died.

[14] An issue throughout this proceeding is whether Branislav’s purported signature on the purported contract is authentic or forged. Both parties spoke about retaining handwriting experts, and it appears that both did. No one produced a report notwithstanding adjournments for that purpose.

Procedural History

[15] The Application was issued on 9 August and served on 13 August 2022. On 25 October 2022, Ben delivered his Responding Record. The Application was first returnable on 1 November 2022. Ben requested an adjournment to file responding material and cross examine Andrea. By her endorsement, Baltman, J., adjourned the matter to a long motion date for a two-hour hearing. She set a timetable for the delivery of “any further affidavits” from Ben, Andrea’s reply, cross examination, and delivery of facta.

[16] Ben delivered neither further affidavits nor conducted cross examinations. Accordingly, the Estate requested a Case Conference with Ricchetti, RSJ to move this matter along.

[17] The Case Conference was held on 8 March 2023 before Ricchetti, RSJ. The RSJ fixed the return of the Application for 28 August 2023. He noted that Ben had delayed the matter at the first return of the Application, having filed his Responding Record shortly before the hearing, and having requested time to file further Affidavits. The RSJ noted the notwithstanding that Baltman, J gave Ben leave to file further materials, Ben did not. Further, no one sought to cross examine the other.

[18] The RSJ noted that notwithstanding Baltman, J.’s, order, the day before the 8 March Case Conference before the RSJ, Ben delivered a Supplementary Application Record which included another affidavit by Ben, and one by William Bussiere sworn 3 and 7 March, respectively.

[19] The RSJ made the 28 August 2023 hearing date peremptory on all parties. He ordered that no further materials could be filed without leave of the court. He timetabled delivery of answers to undertakings and refusals, cross examinations, exchange of Branislav’s handwriting, exchange of handwriting experts’ reports, and a number of other steps. He ordered Ben to pay the Estate costs of $500 forthwith.

[20] On 27 July 2023, Ben advised that he would not be submitting his expert report.

[21] The Application hearing did not proceed on 28 August 2023. Because the RSJ made the hearing peremptory on all parties, the Estate did not think it had to confirm the motion through the trial office. Accordingly, the motion was not placed on a list.

[22] The matter was next before the court at the 9 January 2024 Assignment Court. Tzimas, J., fixed 31 January 2024 as the hearing date, peremptory to all parties. Ben advised Tzimas, J., that he had a Third Supplementary Responding Record that he wanted to file. Tzimas, J., ordered that the parties file and upload to Caselines of all those documents referred to in Ricchetti, RSJ’s endorsement of 8 March 2023, but deferred to the Application Judge the question of filing the Third Supplementary Responding Record.

Respondent’s Request to File THE THIRD SUPPLEMENTARY RESPONDING RECORD

[23] Ben sought leave from me at the hearing to file his Third Supplementary Responding Record. I did not review the Third Supplementary Responding Record but heard submissions about it. Ben advised that it contained three things:

a) An affidavit from Navenka Matorcevic, sworn 21 July 2023 and served shortly thereafter. Ben’s counsel advised that this witness approached Ben “out of the blue”, but after Ben decided not to file a handwriting expert’s report and the Estate confirmed that it would not, either. This witness was to attest to difficulties Branislav had before his death with his hands and handwriting. b) Another affidavit from Ben sworn to August 2023 which his lawyer advised was in response to the Estate’s handwriting expert’s report which had been served (although not filed on the Application). c) An affidavit from Ben’s lawyer’s clerk sworn 10 January 2024, attaching as an exhibit Branislav’s family doctor’s notes and records which the Estate had provided to Ben which were ostensibly related to the handwriting question.

[24] The Estate advised that it had two affidavits it wished to put before me in opposition to Ben’s request to file his latest Responding Record. If I granted leave to Ben to file his three affidavits, the Estate also had three affidavits in reply. I declined to receive the first two affidavits.

[25] After hearing submissions from both parties, I declined to receive the additional Responding Record for the following reasons:

a) This was the third time an adjournment would be required because Ben produced affidavit evidence at the 11th hour, containing information and material that he had in his possession or which he could have discovered with reasonable diligence, notwithstanding deadlines imposed in previous orders. b) The case concerns a $20,000 contract. Allowing a third adjournment to file six new affidavits was unfair to the parties, unfair to the court, and unfair to other users of the court waiting for access to the Court. c) It was time for this matter to proceed. The resources being expended by the Court and the public on this matter are disproportional to its value. d) With respect to the affidavit of Ms. Matorcevic, there was no explanation as to why this witness came forward after the RSJ’s endorsement in March 2023, and after each party agreed that neither would rely on a handwriting expert’s report. The question of the validity of the signature on the purported contract for the car has been an issue since the Application was issued. e) With respect to Ben’s new affidavit, it was drafted in response to the Estate’s handwriting expert’s report, on which the Estate did not rely. Therefore, this affidavit provided no useful, relevant evidence. f) With respect to the affidavit from Ben’s lawyer’s clerk appending the clinical notes and records of the testator’s family doctor, they were being tendered as corroboration of Ben’s position (as was Ms. Matorcevic’s affidavit) that Branislav’s handwriting toward the end of his life, had deteriorated. Those notes and records are hearsay. They were not admissible under s. 26 or 52 of the Evidence Act as Ben did not give the appropriate Notice.

Issues

[26] The issues in this Application are:

a) Has Ben has met his onus under s. 13 of the Evidence Act to prove that before Branislav’s death Ben purchased the Cobra. b) Is the purported contract invalid on its face? c) Is Branislav’s signature authentic?

Result

[27] The Application is allowed.

[28] For the reasons that follow, I find that the respondent has not met his onus. I also find that the contract is invalid as it is missing necessary provisions. The Estate is the owner of the Cobra. Ben is ordered to return the Cobra and all parts he removed from Branislav’s house to the Estate, at his own expense.

The Law

Onus

[29] The Estate seeks a declaration that the 1967 Mustang Cobra belongs to the Estate. Since Ben is claiming that he had a contract with Branislav which he seeks to enforce against Branislav’s Estate, however, Ben has the onus to establish his right to the car. Only once Ben meets his onus does the evidentiary onus shift to the Estate to show that the contract is not enforceable.

Evidence Required

[30] A person advancing the claim against an Estate arising before the testator’s death cannot rely on his own evidence to establish this claim. There must be evidence independent of the claimant corroborating the claim.

Section 13 of Ontario’s Evidence Act provides:

13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

[31] The jurisprudence sets out the following applicable legal principles:

a) Proof is on the civil standard (see: Riordan v. Mellon, 2000 ONCA 5739, paras. 5 to 6; Bayley v. Trusts Guarantee Co., 1930 ONCA 427, [1931] 1 D.L.R. 500 at p. 505, 66 O.L.R. 254 (C.A.). b) Section 13 of the Evidence Act is to be given a broad interpretation when considering the scope of the evidence capable of corroborating the evidence of the interested party (see: Brisco Estate v. Canadian Premiere Life Insurance Co. (2012), 113 O.R (3d) 161, [2012] O.J. No. 5732, 2012 ONCA 854; Estate of Pandke v. Lauzon et al., 154 O.R. (3d) 307, 2021 ONSC 123, para. 28). c) S. 13 requires that the evidence to be corroborated must be evidence of “material” facts in issue. Expressed another way, the evidence to be corroborated must be the interested party's evidence on essential matters (see: Riordan, para. 29; Bayley, pg. 506). d) The evidence corroborating the interested party’s evidence must be “material evidence”. It must come from another witness or from the circumstances and must be evidence independent of the interested party advancing the claim. The corroborating evidence can be either direct or circumstantial. It can consist of a piece of evidence, or several pieces considered cumulatively. It must be evidence that “appreciably helps the judicial mind” to believe material statements or facts stated by the interested party (see: Smallman v. Moore, 1948 Carswell Ont 110 (S.C.C.), paras. 18 and 19; Cooney v. Neave, 2016 ONSC 525; Estate of Taylor v. Taylor, 2019 ONSC 5277 para. 32; Burns Estate v. Mellon (2000), 2000 ONCA 5739, 48 O.R. (3d) 641 (C.A.), at para. 29; James v. Chedli, 2021 ONCA 593 para. 44). Put another way, the evidence must materially enhance the probability of the truth of the interested claimant’s statement (see: Moran v. Richards; Bolnick et al. v. The Samuel and Bessie Orfus Family Foundation, 2011 ONSC 3043, at paras. 15-16, affirmed at 2013 ONCA 225; Foster v. Royal Trust Company; Cattley v. McCoy, 2021 ONSC 2444, para. 32).

A Viva Voce Hearing

[32] Neither party requested an oral hearing. Each was prepared to proceed on the written record. Since there are some credibility issues in this matter I address, here, whether I should direct an oral hearing or decide this matter on a summary procedure. For the reasons below, this matter can and should be decided summarily.

[33] Rule 75 of the Rules of Civil Procedure governs contentious estate proceedings.

[34] Pursuant to Rule 75.08 where a claim is made against an estate, the trial “shall proceed in a summary manner unless the judge considers it appropriate to give directions as to issues, parties and pleadings.” Rule 75.06 provides that persons appearing to have a financial interest in an estate can apply or move for directions, including, at sub-paragraph (d), procedures for bringing the matter before the court in a summary fashion.

[35] I have also considered the effect of Rule 1.04(1) which directs that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[36] I conclude that no oral hearing is required because:

a) This proceeding has been ongoing since February 2022. b) It has been before the Court several times and adjourned three times, at Ben’s request so he could file material, at the 11th hour. c) The date for this hearing was declared peremptory to all the parties. d) The parties were provided with ample opportunity to build a complete record, and to cross examine. The parties elected to not cross-examine on the affidavits filed, although they were given ample opportunity to do so. The parties (Ben in particular) must have concluded that there was no corroborating evidence to be gained from the cross examinations. e) The amount in dispute is $20,000. A full hearing would violate the principle of proportionality and serve only to prolong these proceedings and create further expense for the parties, all of which is unnecessary. f) I am satisfied that I can determine the issues on the evidence before me without the need for a full oral hearing. g) I am not satisfied that the evidentiary record will be amplified in any way by a trial at which oral evidence is called. I will discuss this further below.

Discussion

[37] For the reasons set out below, the Application is allowed.

Failure to Corroborate.

[38] Ben has failed to provide evidence independent of himself that appreciably helps me to believe his evidence that Branislav sold him the Cobra.

Corroboration of Ben Paying the $20,000 Consideration

[39] Ben said that he paid the $20,000.00.

[40] I find that there is no direct evidence independent of Ben that he paid the consideration.

[41] Ben relies on Affidavit of Mr. Bussiere, which he argues supports his position that he paid Branislav $20,000.

[42] Mr. Bussier’s affidavit is carefully worded. I find that it is evasive.

[43] What Mr. Bussiere does not say is informative. He does not say that he saw Ben give Branislav any money. In paragraph four of his affidavit, Mr. Bussiere says only that he saw Ben holding $20,000 in two envelopes containing $10,000 apiece. This discussion appears to have taken place before either went to give Branislav the money.

[44] Mr. Bussiere says “I was shown the funds for clarification” and was then asked his opinion about whether the car was worth it. Given the question, it is likely that Ben asked the question to determine whether he entered into a reasonable deal. It is unlikely that Branislav asked that question. It is not stated whether Branislav was present for any of this.

[45] Ben said that the circumstances corroborate that he paid the consideration.

[46] I find that the circumstances do not confirm that Ben paid the consideration.

[47] Ben says that after he reached the agreement to with Branislav in July 2020 to purchase the cobra, Branislav told him that he would not accept anything but cash for the payment. Ben had a limit on his daily withdrawals which is much lower than $20,000. Accordingly, he asked Mr. Bussiere if he had access to $20,000 in cash. He did. Therefore, they agreed that Ben would give Mr. Bussiere a bank draft for $20,000 in return for which Mr. Bussiere would give Ben $20,000 in cash to pay Branislav. Ben says that he paid that money to Branislav.

[48] Mr. Bussiere does not corroborate a) the discussion with Ben about, or b) the agreement he made with Ben by which he would give Ben $20,000 in cash in exchange for a bank draft. He does not say that he gave Ben $20,000. He does not say that he saw Ben give Branislav the money.

[49] Ben argues that the overall circumstances corroborate that he paid Branislav $20,000.00.

a) He has the bank transaction record showing that he purchased a $20,000 bank draft on 29 July 2020; b) He produced the customers record of the purchase of the bank draft dated 29 July 2020, which shows that $20,000 was payable to William Bussierre. c) He says that Brussiere’s affidavit confirms that the $20,000 was paid to Branislav.

[50] The Estate argued that the only evidence that the payment was given to Branislav is Ben’s word.

[51] I find that the circumstances do not corroborate that Ben paid $20,000 to Branislav.

[52] The evidence independent of Ben supports the conclusion that Ben purchased a $20,000 bank draft payable to Mr. Bussiere.

[53] Ben argues that Branislav wanted the money quickly. Ben said that because he had a daily limit on the money he could withdraw from his bank account, he entered into the arrangement with Mr. Bussiere to obtain the funds.

[54] Ben’s affidavit does not support this position. Ben’s affidavit says that at the time he and Branislav entered into their agreement, Branislav said that he wanted payment in cash. He then says that “several weeks later” Branislav demanded cash by “the upcoming weekend.” Ben does not say on what day this conversation occurred. Hence, it does not support his position that he could not withdraw funds necessary, presumably via an ATM. The bank draft to Mr. Bussiere is dated 29 July 2020, which was a Wednesday.

[55] I do not accept that any limit on Ben’s withdrawals impeded his ability to obtain funds from his bank. I infer that any limit on the size of his withdrawals applied to withdrawals at an ATM.

[56] Ben’s evidence supports that he could have simply withdrawn $20,000 by appearing at the bank in person. It is trite to say that to obtain a bank draft, one must attend at a bank, personally. The bank’s record of the purchase of the bank draft indicates that the bank withdrew the money from Ben’s account when he bought the bank draft. There is no indication of any limit on in-person withdrawals, or that the account had insufficient funds to buy the bank draft. I conclude, therefore, that Ben, in fact, could have withdrawn $20,000 in cash, at one time, as he did on 29 July 2020 to purchase the bank draft.

[57] That Ben could have withdrawn cash on Wednesday 29 July 2020 makes the arrangement with Mr. Bussiere to obtain the $20,000 illogical and improbable.

Circumstances Showing the Indicia of Ownership

[58] The Estate argues that other evidence suggests that notwithstanding the purported contract, there was never any transfer of ownership, a fact which supports that there was no agreement and Branislav never received the consideration.

[59] Registration of ownership of a motor vehicle the Ministry of Transportation is proof of ownership. It is a rebuttable presumption (see: Hayduk v. Pidoborozny, [1972] SCR 879; Dyck v. Kent & Essex Mutual Insurance Company et al, 2023 ONSC 3725, at para. 28). The Estate has the onus to prove the registered ownership.

[60] The presumption is displaced only when it is shown that the indicia of ownership show that the registered owner does not own the vehicle, has no control over the vehicle, and has done everything that could reasonably be expected to be done to transfer ownership within the meaning of the Highway Traffic Act (see: Dalton (Litigation Guardian of) v. Emerson Estate (1999), 103 OTC 53 (Ont SC), para. 22, and Dyck para. 30). The onus is on Ben. It is evidentiary.

[61] The indicia of ownership include:

a) who holds the license plate on the vehicle, b) a written bill of sale, c) signing over of the registration to the new owner, d) having an insurable interest in the vehicle, e) having possession of the vehicle, f) acknowledging receipt of ownership by the other person, and g) accepting the proceeds of the sale of the motor vehicle

(see: Smith v. Mikel; Liu v. The Personal Insurance Company of Canada, 2017 ONSC 4232, para. 23).

[62] Applying the indicia of ownership here, the only evidence that supports the transfer of ownership of the Cobra from Branislav is Ben’s evidence, and the handwritten agreement.

[63] I have already held that Ben’s statement that he paid the consideration to Branislav is not corroborated by independent evidence and I find that no payment was made.

[64] Other circumstances do not corroborate a sale to Ben, and which support the contrary view, are:

a) Branislav never signed over the ownership in the 15 months between the purported sale and Branislav’s death. The MOT ownership for the Cobra remained in Branislav’s safe deposit box in its original state. b) The vehicle and all of the parts never left Branislav’s possession prior to his death. He did not demand that Ben take them nor did Ben ask to take them. c) Ben only took the car from the garage. He did not take the parts contained in the house. d) There is no independent evidence that Branislav acknowledged the sale. I address the authenticity of the signatures on the contract, below. e) There is no evidence that Ben insured the car after July 2020.

[65] Each of the findings, above, are sufficient to dispose of the Application. I address now, subsidiary arguments the parties raised.

Corroboration of the Contract

[66] Ben argues that Mr. Bussiere also corroborates the fact that the contract was made.

[67] I disagree.

[68] Mr. Bussiere says (between paragraphs 2, 3, and 7 and seven of his Affidavit) that he heard Ben and Branislav discuss Ben’s purchase of the Cobra including the $20,000 price. The only date Mr. Bussiere gives for these discussions is 19 December 2018, when Branislav and Ben were at Mr. Bussiere’s mechanic shop because he was repairing Branislav’s Dodge Caravan.

[69] Ben says that the contract was agreed to in July 2020 but the discussions with Branislav began in early 2019.

[70] Mr. Bussiere’s evidence corroborates the discussions he overheard, not that the contract was actually entered into.

[71] This issue is a red herring. The handwritten contract is evidence independent of Ben’s evidence, notwithstanding that he wrote it, because Branislav is purported to have signed it.

Validity of the Contract is Vague

[72] The Estate argues that the contract is vague because it lacked essential terms, namely a date, and either a fixed buy-back price for the car or a method of determining the buyback price.

[73] The contract reads:

I Branislav S S Nikolic am selling my nephew Ben Nikolic my 1968 Mustang Cobra for $20,000 plus parts and spare motor to be rebuilt and after its done I will have the right to buy it back. If I choose not to, my nephew can keep or sell the car.

Branislav S S Nikolic Ben Nikolic

[74] In interpreting a contract, the Court must search for an interpretation which, from the whole of the contract, represents the true intent of the parties at the time of entry into the contract. A literal meaning should not be applied where it would lead to an unrealistic result or a result which would not have been contemplated in the commercial atmosphere in which the agreement was made. Where words may bear two constructions, the more reasonable one that which produces a fair result, must be applied as promoting the intention of the parties. An interpretation which defeats the intention of the parties and their objective in entering into the contract in the first place should be discarded in favour of an interpretation of a policy which promotes a sensible commercial result. (See: Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12).

[75] Contractual interpretation involves issues of mixed fact and law. It is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix of the contract. Although the language of a contract must be read in light of the factual matrix at the time the contract was entered into, the factual matrix cannot be used to overwhelm, alter, delete from, or add to the text (see: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633,; Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 26).

[76] The parties agree that because he is advancing a claim against an estate, Ben has the onus to prove the contract. He must prove that there was offer, acceptance, and the payment of consideration. Further, he must prove that there was a meeting of the minds on all of the material terms of the contract (see: Downey v. Arey, 2021 ONSC 2781, paras. 89 to 92, and 97 to 101, aff’d 2022 ONCA 673; Di Battista v. Di Battista Farms Ltd., 2012 ONCA 721, at para. 14; Modern Paving Ltd. v. Donovan Homes Ltd, 2011 NLCA 39, at paras. 33 and 34).

[77] The material terms of a contract usually include a specific description of the thing to be purchased, consideration, and dates by which things must be done. If there is no agreement on essential terms or the terms have not been agreed to with reasonable certainty, there is no agreement until those terms are agreed to at a later date. An essential provision that is not settled means that there cannot be an enforceable contract see: Bawitko Investments Ltd. v. Kernals Popcorn Ltd. (1991), 53 O.A.C. 312 (C.A.), at paras. 21 & 22).

[78] The factual matrix of this purported contract is that it was entered into between two relatives concerning certain assets of one of them. Neither was a lawyer and neither consulted a lawyer. There is no evidence that either had difficulty with the English language.

[79] Notwithstanding this factual matrix, I find that the contract was vague for the following reasons:

a) Its object is not clear. The contract is unclear what the parties intended to be sold. There are three reasonable possibilities:

a) the car, alone b) the car, spare engine, and spare parts, or c) the car is being sold but the engine is to go to Ben only to be rebuilt.

Mr. Bussiere provided the only disinterested evidence. He said that the discussions between Branislav and Ben concerned the Cobra, not the engine or the parts. In para. 2 of his affidavit Mr. Bussiere refers to the car “…that was sitting in Mr. Nikolic’s (senior) garage in a state of disrepair and it would serve it better if Mr Nikolic (junior) purchased the car to retore as a legacy vehicle for himself and his children…” In the balance of his affidavit, Mr. Bussiere refers only to “the car” or “the vehicle”.

b) The consideration is not clear. In the agreement Branislav says “I… am selling my 1968 Mustang … for $20,000 plus parts….” The confusion arises in terms of whether the $20,000 also includes the rebuild of the engine which Branislav had the right to buy back.

There is no contextual evidence to assist in interpreting this clause.

c) The object of the buyback provision is not clear. There are three reasonable interpretations:

a) Branislav had the right to buy back the car and the engine, b) Branislav had the right to buy back the car, but not the engine, c) Branislav had the right to buy back the engine but not the car.

There is no independent evidence other than Ben’s and the handwritten document about the buy back. Ben’s evidence only refers to purchasing “…the Vehicle with its parts….”. He does not mention the spare engine.

d) The contract fails because it has no price for the buy back, or a mechanism to determine that price. The contract provides Branislav with the right to buy back the car and/or the engine, once restored. The right contracted for is not limited to the right to bid first, or the right of first refusal. It is the right to purchase. The price of the buy back is not stated nor is there a mechanism in the agreement to determine that price. Price is an essential part of an agreement.

The Signature is not Branislav’s

[80] The Estate invites me to compare Branislav’s signature on the Will and his signature on the purported contract and conclude that Branislav did not sign the purported contract.

[81] I decline to do this. The documents were signed 9 years apart. Signatures change over time. A visual comparison is insufficient. Expert evidence is required.

Summary

[82] The Application is allowed. Ben has failed to corroborate that he paid to Branislav $20,000, which he says is the consideration stipulated in the contract. That alone is sufficient to allow the Application.

[83] In addition, I find that the contract fails as it is vague.

[84] I also find that the registration of the Cobra, combined with the indicia of ownership, show that ownership did not change from Branislav to Ben. Ben failed to discharge his evidentiary burden.

[85] I order that Ben shall return the Cobra, and any parts he removed from Branislav’s premises, within 30 days of the date of these reasons. The return of the car and any parts shall be at his own expense and to a location to be specified by the Estate.

Costs

[86] Neither party uploaded to Caselines their costs as required by the Central West Practice Direction, paras. 71 to 75 as modified by the Central West Region Notice to the Profession effective 1 September 2023.

[87] The Estate submits that if it is successful the Respondent should pay costs a $25,000.00 which reflects the work done and the seniority of Applicant’s counsel.

[88] The Respondent argues that if he is successful, he should receive costs of $12,500. He submits that the $25,000 claimed by the Applicant is excessive and includes time to retain, instruct and receive advice and reports from a handwriting expert. Since the handwriting expert was not used, those fees are not recoverable.

[89] Since the parties did not comply with the requirement to upload their costs submissions to Caselines, I am left to determine costs without their assistance.

[90] The purpose of a costs award is to fix an amount that is reasonable and proportional for the paying party to pay and the receiving party to receive as partial indemnity for costs.

[91] The Estate was successful and entitled to its costs.

[92] In this case, the Application was delayed several times which increased the costs incurred. Ben was responsible for three delays, and the Estate for one. Ben’s delays and the excess work incurred because of those delays arose from Ben’s failure to abide by orders to serve and file material in a timely way. The Estate’s delay arose from its failure to confirm the Application’s hearing.

[93] I assess that a fair, reasonable, and proportional costs award for this matter, all things considered, is $10,000.00 all inclusive. The Respondent shall pay costs in that amount to the Applicant by 4 pm, 29 March 2024.

Trimble J. Released: February 8 2024

COURT FILE NO.: CV-22-2258-00ES DATE: 2024 02 08 SUPERIOR COURT OF JUSTICE – ONTARIO RE: NIKOLIC ESTATE, Applicant AND: NIKOLIC, Ben, Defendant BEFORE: Justice J. Trimble COUNSEL: Christopher Sparling, for the Applicant David Bernstein, for the Defendant ENDORSEMENT Trimble J Released: February 8, 2024