COURT OF APPEAL FOR ONTARIO

CITATION: Gefen Estate v. Gefen, 2022 ONCA 174

DATE: 20220302

DOCKET: C67633, C67724 & C68850

Pepall, Tulloch and
    Roberts JJ.A.

DOCKET: C67633

BETWEEN

Lucia Saunders as Estate Trustee
of the Estate of Yehuda Gefen, deceased

Applicant (Respondent)

and

Henia Gefen
, and Ronald Rutman as Estate Trustee
During Litigation of the Estate of Elias Gefen, deceased

Respondents (
Appellant
)

DOCKET: C67724

AND BETWEEN

Henia Gefen in her personal capacity and
as Estate Trustee of the Estate of Elias Gefen

Plaintiff

and

Arie Gaertner, Miller, Canfield, Paddock and
    Stone LLP,
The Jewish Home for the Aged, Baycrest Hospital,
Baycrest Centre for Geriatric Care,
Yehuda Gefen and Harry Gefen

Defendants

AND BETWEEN

Harry Gefen

Plaintiff by Counterclaim (Appellant)

and

Henia Gefen in her personal capacity and
as Estate Trustee of the Estate of Elias Gefen,
Harvey Gefen, Ashley Gefen
, Dundas-Thickson Properties Ltd.,
1393522 Ontario Limited and 1585708 Ontario Limited

Defendants by Counterclaim (
Respondents
)

AND BETWEEN

Harry Gefen

Third Party Plaintiff (Appellant)

and

Harvey Gefen

Third Party Defendant (Respondent)

DOCKET: C68850

AND BETWEEN

Henia Gefen in her personal capacity and
as Estate Trustee of the Estate of Elias Gefen

Plaintiff (
Appellant
)

and

Arie Gaertner, Miller, Canfield, Paddock and
    Stone LLP,
The Jewish Home for the Aged, Baycrest Hospital,
Baycrest Centre for Geriatric Care,

Yehuda Gefen and Harry Gefen

Defendants (
Respondents
)

AND BETWEEN

Harry Gefen

Plaintiff by Counterclaim (Respondent)

and

Henia Gefen in her personal capacity and
as Estate Trustee of the Estate of Elias Gefen
,
Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd.,
1393522 Ontario Limited and 1585708 Ontario Limited

Defendants by Counterclaim (
Appellant
)

Lionel Tupman and Arieh Bloom, for the appellant Harry
    Gefen

Ronald Moldaver, for the respondents Henia, Harvey and
    Ashley Gefen

Christopher Graham, for the respondent Lucia Saunders,
    as Estate Trustee of the Estate of Yehuda Gefen

Heard: October 13, 2021 by video conference

On appeal from the judgment of Justice Jessica Kimmel of
    the Superior Court of Justice, dated October 17, 2019, with reasons reported at
    2019 ONSC 6015 and 2019 ONSC 6017.

Pepall J.A.:

Introduction

[1]

Elias and Henia Gefen were married for 65 years. They were Holocaust
    survivors from Poland who immigrated to Canada in 1951. They had very little when
    they started out. Elias was a roofer and Henia, a homemaker. They were a
    hard-working couple, and over the years they invested in real estate which
    became very valuable. The couple had three sons: Harvey, Harry, and Yehuda.
    During their lifetimes, the couple were very generous with each of their three
    sons.

[2]

Elias and Henia had mirror wills, and when Elias died on October 28,
    2011, his estate passed absolutely to Henia, and she was named as his sole
    executor.

[3]

Two months before he died, Elias signed a document that is at the heart
    of this case. This document served as the anchor for Harry and Yehudas
    argument that there was a secret trust and a mutual wills agreement that
    operated to divide Elias Estate into equal shares for the three sons on
    Henias death.

[4]

The family dynamics were discordant and characterized by conflict. Henia
    did not feel that her two younger sons, Harry and Yehuda, should receive any of
    her or Elias money. Between 2011 and 2016, she made various
inter vivos
gifts to Harvey. In 2013, Henia sued Harry and Yehuda; counterclaims and
    third-party claims ensued, and since that time, they have all been embroiled in
    litigation: Henia, Harvey, and his daughter Ashley versus Harry and Yehuda. Yehuda
    died at the age of 65 on May 6, 2016, leaving no issue. His Estate is
    represented in the litigation by his partner who is also his estate trustee,
    Lucia Maria Saunders.

[5]

The trial took place in 2018 and 2019. It lasted six weeks and was hard
    fought. The parties called 22 witnesses and argued 21 fully briefed motions. It
    had been preceded by over 60 pre-trial motions. Henia effectively abandoned her
    main claims by electing not to call any evidence at the outset of the trial. As
    such, the trial involved various claims by Yehudas Estate and Harry against
    Henia, Harvey and Ashley,
[1]
and a claim by Henia relating to ownership of a condominium against Yehudas
    Estate.

[6]

The trial judge gave detailed and thoughtful reasons for decision.
    Before this court, Harry alone challenges her conclusion that he and Yehuda had
    failed to establish a mutual wills agreement or a secret trust, and by failing
    to void certain
inter vivos

transfers
    by Henia in favour of Harvey. Henia challenges the trial judges conclusion
    that the joint tenancy in the condominium was severed in favour of Yehudas
    Estate, and also takes issue with the trial judges factual finding on the real
    property encompassed by Elias Estate. For the reasons that follow, I would
    dismiss all of the appeals.

Background
Facts

[7]

At trial, Harry and Yehudas Estate sought a proportionate one-third
    share of the collective wealth and assets accumulated by Elias and Henia over
    their lifetimes, all of which was held by Henia following Elias death in 2011.
    She was a very wealthy woman after Elias died, with a fortune estimated to be
    in the $30 million range. By the time of the trial, Henia had transferred
    a significant portion of this wealth to Harvey and Ashley, and her net worth
    had been depleted by at least 50%. In addition, she had purported to confirm
    indebtedness and granted security over all her remaining assets in favour of
    Harvey and his family. Her physician, Dr. Shulman, was asked to undertake
    capacity assessments of Henia in 2012 and 2014, specifically with respect to her
    transfers to Harvey and Ashley.

[8]

Dr. Shulman concluded that Henia understood the nature of the wealth and
    assets she was transferring, as well as the value. Her rationale for these transfers
    was to reward her son Harvey, whom she considered to have been devoted and
    hardworking and to have helped her with her investments and property
    development. She felt that her other two sons had made no contribution. She
    also wanted to benefit her granddaughter Ashley, of whom she was extremely
    proud. Dr. Shulman concluded, both in 2012 and 2014, that Henia was competent.
    She remained completely lucid and aware of her current financial and personal
    circumstances and was capable of having made these substantial transfers to
    Harvey and Ashley.

[9]

Elias and Henias assets were comprised of cash, cash equivalents and
    holdings in commercial real estate. The couples assets also included a joint
    tenancy in a condominium at 11 Townsgate Drive in North York. It was Eliass
    and Henias matrimonial home. In October 2010, Elias and Henia transferred the
    condominium into their joint names and that of Yehuda. When Elias died, Henia
    and Yehuda held the property as joint tenants. Yehudas death in 2016 led to a
    survivorship application by Henia, and questions over whether Yehudas joint
    tenancy had been severed prior to his death. If it had been severed, Henia and
    Lucia Saunders as Estate Trustee would hold the property as tenants in common.
    If not, it would be held by Henia alone.

[10]

In
    October 2007, Elias and Henia signed primary and secondary mirror wills. The
    wills granted to the surviving spouse the residue of the deceased spouses
    estate for his or her own use absolutely, with a gift over of the residue to
    their three sons if the other spouse did not survive for 30 days. The lawyer
    who prepared the wills, Noah Okell, is Henias nephew. At trial, he testified
    that neither Elias nor Henia ever told him that they had an agreement not to
    change their 2007 wills, nor did they give him any indication that they wanted
    to place any restrictions on the survivors ability to use or deal with the
    estate as they wished, nor that they desired any equalization or accounting of
    the gifts and property they had given to their sons during their lifetimes.

[11]

In
    2011, Elias was ill with lymphoma and in care at Baycrest Hospital. In June
    2011, he granted Yehuda power of attorney for his personal care.

[12]

Harvey
    had been managing Elias real estate assets. Elias became concerned and
    instructed a lawyer, Arie Gaertner, to investigate the status of the business
    interests that were being managed by Harvey and to take such legal steps as
    were necessary to protect Elias estate. Ultimately, on August 10, 2011, Stephen
    Greenberg was granted a power of attorney over Elias property to make
    inquiries and to look into whether Harvey had undertaken transactions involving
    Elias property that Elias was unaware of. No one suggested that Elias lacked
    the capacity to retain and instruct counsel, or to execute any of the legal
    documents in the timeframe prior to his death. Harvey and Henia were upset that
    Elias had retained and instructed counsel without their knowledge, and Henia
    was particularly upset about the Greenberg power of attorney.

[13]

On
    August 17, 2011, Elias and Harvey signed a document that is at the centre of
    the mutual wills and secret trust claims. Harry maintains that the document
    evidences a mutual wills agreement between Elias and Henia. The document was
    handwritten by Harvey and prepared without the assistance of counsel. Key
    paragraphs stated:

I, Elias Gefen direct my son Harvey & my wife Henia to immediately
    get rid of & revoke the Power of Attorney over Property given to Mr.
    Greenberg whom I do not know whatsoever. I understand that this took away my
    wifes P of Attorney over Property given by myself to my wife & prepared by
    my own lawyer Noah Okell. I did not intend to do this in any way. Only Henia
    has had or will have Power of Attorney

I ask that my wife be given back the Power of Attorney over
    Property
and

only

my

wife
as she and I both built
    up the estate and own it together jointly as one pocket. Only Noah and Noah
    alone will represent myself and or my wife with respect to any will &
    estate work & our properties.

I further confirm that my latest will
[2]
as prepared by Noah has not knowingly been changed by myself to date nor will
    it be changed during my life. My wife Henia has told me that she also will not
    change the will either & that our intentions that the estate be divided
    equally between our 3 sons after our death stands.

In my condition I am tired & confused & do not
    understand everything & I want only Noah to be my lawyer so this will not
    happen again, any legal documents notwithstanding.

[14]

That
    evening, in the presence of Harveys former lawyer and high school classmate, Nestor
    Wolicki, Elias signed a revocation of the Greenberg Power of Attorney and a new
    Power of Attorney for Property in favour of Henia. He also signed the
    handwritten document as did Harvey. Henia did not sign it, nor was she present
    when it was discussed, prepared, and signed.

[15]

Although
    Henia did not sign the August 17 document, she testified that it was consistent
    with certain testamentary intentions that she held both prior to and at that
    time, in that:

a.

it was her
    intention never to change her will during Elias lifetime, such that he would
    always inherit the residue of her estate if she died first. In her words One
    will --- me and my husband --- me to my husband and my husband to me;

b.

it was her
    intention that the residue of their estate be divided equally between their
    three sons after their deaths.

[16]

Elias
    interactions with each of his sons were tainted in the latter years of his life
    by their efforts to secure their respective financial positions. Elias was
    upset after visits from Harry and Yehuda during which they asked for, or about,
    the family finances. Meanwhile, on August 16 and October 15 (the day that Elias
    suffered his fatal cardiac arrest from which he never recovered consciousness
    and died two weeks later, on October 28, 2011), Harvey secretly made video
    recordings of Elias which display a tone of badgering by Harvey of Elias about
    legal and financial matters. The Baycrest Hospital records during the summer of
    2011 provided insight into the negative effects of the family discord on Elias.
    Dr. Schwartz, Elias treating physician, testified on the family conflict that
    was greatly upsetting and distressing Elias. Mr. Gaertner testified on his
    concerns about the constant attempts of family members to influence Elias
    decisions and all the infighting that was wearing Elias out. That said, none
    succeeded in influencing Elias to make any changes to the status of the
    ownership of the real estate holdings or his testamentary dispositions.

[17]

Following
    a family meeting at Baycrest on August 30, 2011, family visits were restricted
    and supervised by personal care workers. Henia came to believe that Harry and
    Yehuda had embarked on a campaign to keep her away from Elias while he was
    dying, and that Mr. Gaertner and Baycrest facilitated this campaign. This
    animated her claims against all of them that were effectively abandoned at the
    outset of the trial.

[18]

In
    furtherance of his mandate to investigate, Mr. Gaertner reported to Elias on
    August 25, 2011 that Mr. Gaertners request to meet with Harvey and Henias
    lawyers had been ignored, and that Elias may have reason to suspect that Harvey
    and/or Henia may have something to hide. Mr. Gaertner recommended that Elias
    change his 2007 wills to provide for Henia in accordance with statutory
    obligations and to leave the rest to be divided equally among the three sons,
    with the inclusion of some mechanism for the trustee to be satisfied that
    monies or assets had not been taken without Elias knowledge or consent. Elias
    instructed him to prepare a new will in accordance with those recommendations,
    but Elias had not yet decided to sign it. Draft wills were never reviewed or
    considered by Elias.

[19]

On
    October 17, 2011, Mr. Gaertner wrote in a letter to the members of the Gefen
    family and their counsel advising that Elias would not change his will, [b]ased
    on his firmly held belief, brought about by the repeated assurances from his
    wife and Harvey, that his wife will not change her current will (i.e., the one
    prepared by Mr. Okell concurrently with Mr. Gefens own will) nor transfer any
    of his or her assets during her lifetime, other than to her three sons
    equally. Mr. Gaertner also testified at trial about assurances given by
    Henia that she would treat her sons equally and equally distribute the assets
    on her death; that based on Henias assurances, Elias was satisfied that
    everything would be distributed in accordance with his wishes; and that Elias
    trusted his wife to give effect to the common intention to have their estates
    divided equally among their three sons.

Summary of Trial Judges Reasons

[20]

As
    mentioned, at trial, Harry and Yehudas Estate sought a proportionate one-third
    share of the collective wealth and assets accumulated by Elias and Henia over
    their lifetimes, all of which was held by Henia following Elias death, and
    much of which was then conveyed by Henia to Harvey and his children. Harry and
    Yehudas Estate sought an equalization of the gifts Harvey and his children
    received and sought to ensure an equal sharing of the residue of Henias estate
    under her will when she died. They primarily relied on the doctrine of mutual
    wills and in particular, argued that the August 17, 2011 note constituted evidence
    of a mutual wills agreement between Elias and Henia. They also relied, for
    further corroboration of an agreement, on statements made by Elias in Mr.
    Gaertners October 17, 2011 letter and admissions they attributed to Henia. In
    addition, they advanced an argument that Elias and Harvey entered into a secret
    trust agreement on August 17, 2011 under which all assets received by Harvey
    after that date from Elias or Elias holdings were to be held by Harvey in
    trust for his brothers. Lastly, they sought to rely on the principle of unconscionable
    procurement as an alternate means to hold Harvey accountable for assets he and
    his children received from Henia.

[21]

The
    trial judge was not satisfied on a balance of probabilities of the existence of
    a mutual wills agreement between Elias and Henia as alleged by Harry and
    Yehudas Estate. The evidence of any such agreement was not clear, cogent and
    non-speculative.
Rather, she found that the evidence
    against the existence of a [mutual wills agreement] overwhelms any evidence (or
    suggested inferences) in favour of it.
She observed that the statements
    from Elias in the August 17 document and Mr. Gaertners October 17, 2011 letter
    could not be read in isolation. She stated that, when considered in context:

I am not satisfied that they constitute clear and cogent
    evidence of an agreement between Elias and Henia not to ever change or revoke
    their 2007 wills and to equally distribute the Gefen Family Assets to their
    three sons during the remainder of their lives and upon the death of the
    survivor of them. Accepting, as I do, that these documents accurately record
    what Elias understood and believed Henia told him at the time, they still do
    not amount to a binding an[d] enforceable agreement.

[22]

She
    was also not persuaded that admissions had been made by Henia or on her behalf that
    established a mutual wills agreement.

[23]

The
    trial judge also dismissed Harry and the Yehuda Estates claim that a secret
    trust was created on August 17 and crystallized, at the latest, on Elias death
    on October 28, 2011. She found that the August 17 document did not identify any
    grant of assets from Elias to Harvey. It also failed to contain any
    instructions to Harvey on how to deal with any assets received, nor was there
    any evidence that Harvey agreed to receive assets in trust for his brothers.
    The document only spoke to Elias general intentions, not to the creation of
    any binding trust obligations on Harvey. Given the history of animosity between
    Harvey and his brothers, it did not make sense that Elias intended to establish
    a trust on those terms. In addition, the certainties of trust had not been made
    out.

[24]

Relying
    on a concept of unconscionable procurement described in Capacity and Undue
    Influence by John E.S. Poyser, (Toronto: Carswell, 2014), the trial judge
    granted in part Harrys unconscionable procurement claim against Harvey. In a
    nutshell, the trial judge described such a claim as requiring Harry and Yehuda
    to establish a significant benefit to Harvey and Harveys active involvement in
    procuring the benefit. If they were successful, there was a presumption that
    Henia did not truly understand what she was doing in effecting the transaction
    and the court would then determine whether it would be unconscionable to let
    the transaction stand. The trial judge noted that there was no need of proof of
    incapacity or undue influence. Her finding of unconscionable procurement resulted
    in an order that benefits transferred to Harvey, amounting to approximately
    $8.66 million, be held in trust for and returned to Henia or her estate. Harvey
    was permitted to keep other holdings that had been in issue.

[25]

With
    respect to Yehudas Estates claim to a 50% interest in the Townsgate
    condominium, the trial judge concluded that the joint tenancy between Henia and
    Yehuda had been severed before his death and that they held their interests as
    tenants in common. She therefore declared Henias survivorship application to
    be void and directed the Registrar to reflect that the Townsgate property was
    owned by Henia and Yehudas Estate as tenants in common. She also ordered that
    Yehudas Estates 50% interest was only to be liquidated once Henia had moved
    out of the condominium.

[26]

Subsequently,
    she awarded the parties their costs out of Elias Estate as follows (inclusive
    of HST):

-

Harvey
    and Ashley: $1,042,749.57;

-

Harry:
    $1,031,084.67; and

-

Yehuda
    Estate: $1,002,153.08.

In addition, she ordered that Elias Estate pay various
    third-party witnesses in the total approximate amount of $40,000.

The Appeals

[27]

Before
    this court, Harry appeals from the judgment; Yehudas Estate does not. Harry
    argues that the trial judge erred: (1) by imposing too heavy a burden of proof on
    Harry and Yehuda to establish that a mutual wills agreement existed; (2) by not
    finding a secret trust between Elias and Harvey; and (3) by failing to void
    certain
inter vivos

transfers that Harvey had unconscionably
    procured from Henia.

[28]

Henia
    also appeals from the judgment. First, Henia submits that the trial judge erred
    by identifying in para. 5 of the judgment Elias real property at the time of
    his death, even though their respective ownership interests were not the
    subject of pleadings at trial and the appellant could not meaningfully
    contribute to the issue of ownership because the trial record was insufficient.

[29]

Second,
    Henia argues that the trial judge erred by finding that Yehudas Estate owned a
    50% interest in Townsgate. She accepts that Yehuda was a joint tenant in
    Townsgate, but submits that Yehudas joint tenancy was never severed and that
    when Yehuda died in 2016, she took sole ownership of Townsgate by survivorship.
    Yehudas Estate defends this appeal by Henia.

Harrys Appeal

(i)

No Mutual
    Wills Agreement

[30]

A
    mutual wills agreement is a binding contract not to revoke wills. A mutual wills
    agreement between two testators is designed to prevent either from changing
    their will without the others consent.
[3]
Cullity J. described the doctrine in
Edell v. Sitzer
(2001),

55
    O.R. (3d) 198 (S.C.), affd 9 E.T.R. (3d) 1 (Ont. C.A.), leave to appeal
    refused, [2004] S.C.C.A. No. 372
, at para. 58:

a.

the agreement must satisfy the requirements for a binding contract and
    not be just some loose understanding or sense of moral obligation;

b.

it must be proven by clear and satisfactory evidence; and

c.

it must include an agreement not to revoke the wills.

[31]

The
    agreement may be proven from the words of the will itself or from extrinsic
    evidence: Albert H. Oosterhoff
et al., Oosterhoff on Wills
, 9th ed.
    (Toronto: Thomson Reuters, 2021), at p. 136. Thus, an agreement may be found on
    the basis of evidence outside the four corners of the will. That said, an
    agreement should not be inferred from the bare fact that mutual wills were
    made:
Edell v. Sitzer
, at para. 73.

[32]

In
    his appeal, Harry takes issue with the trial judges treatment of the burden of
    proof required to establish a mutual wills agreement.

[33]

The
    trial judge correctly noted at para. 85 of her reasons that the burden of proof
    lay with the party alleging the existence of a mutual wills agreement. She went
    on to state that [t]he onus on the party alleging a [mutual wills agreement]
    is heavy in that there must be clear evidence of a mutual wills agreement.
    She quoted from
Bellinger v. Nuytten Estate
, 2002 BCSC 571, 45 E.T.R.
    (2d) 10 that the plaintiff bears a heavy onus to establish a binding
    agreement, in the nature of a contract, in clear and unequivocal terms. She
    observed at para. 86 that the requirement of proof of an agreement by clear and
    cogent evidence was a function of the importance of testamentary autonomy and the
    tension between that important value and a [mutual wills agreement] which
    encroaches upon it. Citing
Canada (Attorney General) v. Fairmont Hotels
    Inc.
, 2016 SCC 56, [2016] 2 SCR 720, she stated that certain claims,
    including a claim of a mutual wills agreement, require evidence exhibiting a
    high degree of clarity, persuasiveness and cogency. At para. 118 of her
    reasons, she stated:

I must be satisfied, on a
    balance of probabilities, of the existence of an agreement between Elias and
    Henia on the terms alleged by Harry and Yehudas estate that:

a.

The residue of their collective assets (estates)
    would pass to and be divided equally among their surviving sons (or their
    issue, if any); and

b.

The survivor of them would not revoke
    or change their 2007 wills or make inter-vivos gifts that would defeat this
    intended distribution of their estates; and

c.

Any inter-vivos gifts that were made by
    the survivor of them could be made only to their living sons in equal shares,

based on evidence that is
    clear, cogent and non-speculative. I am not satisfied of this. The evidence
    against the existence of a [mutual wills agreement] overwhelms any evidence (or
    suggested inferences) in favour of it.

[34]

Harry
    submits that the trial judge improperly elevated the burden of proof required
    to establish a mutual wills agreement to something more than a balance of
    probabilities.

[35]

I am not persuaded that she did.

[36]

The
    only civil standard of proof is proof on a balance of probabilities:
F.H. v. McDougall
,
    2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. In all cases, the evidence
    adduced to meet this standard must be sufficiently clear, convincing and
    cogent to persuade the trier of fact of the merits of the claim on a balance
    of probabilities:
McDougall
,
at para. 46.

[37]

The
    quality of the evidence required to meet the standard will vary according to
    the nature of the claim and the evidence capable of being adduced:
Nelson (City)
    v. Mowatt
, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 40. So, for example,
    as explained in
Mowatt
, in historical adverse possession claims, the
    quality of the supporting evidence might not be as robust as evidence of recent
    possession, but it must still be sufficient to meet the burden of proof. Or, as
    illustrated by
Canada (Attorney General) v. Fairmont Hotels Inc.
, 2016 SCC 56,
[2016] 2 S.C.R. 720, the
    quality of the evidence to be adduced by a party seeking rectification is such
    that it must displace an instrument to which the party had previously
    subscribed. Cogent and convincing evidence will be needed to counteract the
    inherent probability that the written instrument truly represents the parties
    intention because it is a document signed by the parties:
Fairmont
    Hotels Inc.
, at para. 36. However, the party
    must nonetheless meet the standard of proof.
Thus, the quality of the
    evidence may vary depending on the claim, but the standard of proof will always
    remain the same: proof on a balance of probabilities.

[38]

The
    trial judge reasoned that a mutual wills agreement must be proven by clear,
    cogent, and compelling evidence in part because a mutual will agreement
    interferes with the testamentary freedom of a testator, and testamentary
    freedom is very important.
[4]
The Supreme Court has explicitly rejected the notion that civil claims must be
    scrutinized with greater care because of their onerous consequences to one
    side:
McDougall,

at paras. 45-46. Accordingly, there is no
    principle that a mutual wills agreement demands a higher standard of proof due
    to its nature. So, to analogize with rectification claims,
parties seeking to establish a mutual wills agreement often
    face a difficult task meeting the standard of proof because frequently they
    must displace
strong evidence contained in a will that tends to negate a
    claim of a mutual wills agreement.

[39]

I
    do not read
Fairmont Hotels Inc.
to mean that a higher quality of
    evidence is required to prove a claim merely because of the claims importance
    or because of its importance to a value such as testamentary freedom. Nor, however,
    did the trial judge. Rather, as with rectification claims, [a] court will
    typically require evidence exhibiting a high degree of clarity, persuasiveness
    and cogency before substituting the terms of a written instrument with those
    said to form the partys true, if only orally expressed, intended course of
    action:
Fairmont Hotels Inc.
, at para. 36.

[40]

Having
    set forth the dictates of the applicable jurisprudence, the trial judge stated
    at para. 88:

Harry and
Yehudas
estate argue that this evidentiary burden cannot be
    interpreted as enhancing their civil burden of proof beyond the standard
    balance of probabilities. I agree, but I do not understand the opponents of the
    [mutual will agreement], Henia and Harvey, to be arguing for an enhanced burden
    in that sense. Rather, they have submitted that the evidentiary standard for
    proving [a mutual will agreement] is in line with the Supreme
Courts
recent holding that, while there is only one civil
    standard of proof, certain claims require "evidence exhibiting a high
    degree of clarity, persuasiveness and
cogency.
    That is how I have approached the burden of proof in this case.

[41]

The
    trial judge was clearly alert to the governing law, namely that there is only
    one civil standard of proof and that to meet that standard, the quality of the
    evidence had to be sufficiently clear, persuasive and cogent to convince her of
    the merits of the mutual will agreement claim on a balance of probabilities.

[42]

Moreover,
    as the trial judge explained, the evidence clearly favoured a dismissal of the
    mutual wills agreement claim. To repeat, the evidence against the existence of
    [a mutual wills agreement overwhelmed] any evidence (or suggested inferences)
    in favour of it. Among other things, Henia did not sign, nor was she present,
    when the August 17, 2011 document was signed. There was no evidence from which
    to infer that Elias and Henia agreed to restrict the ability of the survivor to
    deal freely with the estate assets during her lifetime. Elias conduct in
    providing instructions for a possible new will was inconsistent with the alleged
    mutual wills agreement, and Mr. Gaertners willingness to take those
    instructions also feeds this inconsistency.

[43]

The
    trial judge was fully conversant with all the unhappy dynamics of this family.
    She fairly concluded based on the evidence before her that there was no mutual
    wills agreement between Elias and Henia.

[44]

I
    would reject this ground of appeal.

(ii)

No Secret Trust

[45]

Harry
    also challenges the trial judges conclusion that there was no secret trust.

[46]

A. H. Oosterhoff describes secret trusts in Secret and Half-secret
    Trusts, Ontario Bar Association Continuing Legal Education, Trusts, Trustees,
    Trusteeships  All You Need to Know and More, September 18, 2006, at p. 3:

A secret trust comes into existence when a testator leaves
    property to a person and that person secretly agrees with the testator to hold
    the property for the benefit of another person. There are two kinds of secret
    trust. With a fully-secret trust the testator leaves the property to a person
    apparently absolutely. In other words, the will discloses neither the existence
    of the trust, nor the name of the beneficiary. With a half-secret trust the
    will leaves the property to a person in trust, but the will does not disclose
    the beneficiary. If the requirements for the trust are satisfied, equity will
    enforce the trust and ensure that the property is given to the intended
    beneficiary of the trust.

[47]

Secret trusts do not comply with the formal requirements of
    statutes governing wills, but equity intervenes to enforce the trust.
    Traditionally, this was seen as a means to avoid fraud, as absent intervention
    by equity, the trustee who received property might keep it, rather than abiding
    by the terms of the trust.

[48]

The trust was secret for a variety of reasons. As explained by A.H. Oosterhoff,
    Robert Chambers & Mitchell McInnes,
Oosterhoff on Trusts
: Text,
    Commentary and Materials, 8th ed., (Toronto: Carswell, 2014), at p. 870:

A testamentary gift that favours one sibling over another, or
    that reveals the existence of an illegitimate child or secret lover, may
    generate ill-will or hostility amongst family members and close friends. Better
    to postpone the storm until after one is gone. Alternatively, a testator may be
    motivated by a desire for secrecy even after death. Once admitted to probate, a
    will becomes a public document, available to anyone for a fee. A secret trust
    allows a testator to conceal the fact that property has been left to, say, a
    political organization with unpopular views.

[49]

In
Champoise v. Prost
, 2000 BCCA 426, 77 B.C.L.R. (3d)
    228, the British Columbia Court of Appeal described the elements of a secret
    trust at paras. 15-16:

A secret trust arises where a person gives property to another,
    communicating to that person an intention that the property be dealt with in a
    specific way upon the happening of an event, and the donee accepts the
    obligation. The essential elements are the intention of the donor, a
    communication of the intention to the donee and acceptance of the obligation by
    the donee:
Sutherland Estate v. Nicoll Estate
, [1944] S.C.R. 253 (sub
    nom.
Hayman v. Nicoll
), [1944] 3 D.L.R. 552;
Jankowski v. Pelek
    Estate
, (1995), 131 D.L.R. (4th) 717 (Man. C.A.);
Ottaway v. Norman
,
    [1971] 3 All E.R. 1325 (Ch.D.); D.W.M. Waters,
Law of Trusts in Canada
,
    2d ed. (Toronto: Carswell, 1984) at 215-217.

In addition to these requirements for an enforceable secret
    trust, the three certainties necessary for any express trust must be exhibited;
    the words making the trust must be imperative, the subject of the trust must be
    certain, and the object or person intended to take the benefit of the trust
    must be certain. Further, those certainties must be exhibited at the time the
    trust is created:
Re Beardmore Trusts
, [1951] 1 D.L.R. 41; D.W.M.
    Waters,
Law of Trusts in Canada
,
supra
at 107.

[50]

As
    the trial judge noted, the courts distinguish between an intention to create a
    legally enforceable trust as opposed to a moral obligation intended to guide
    the recipients conscience: see, e.g.,
Re Snowden
, [1979] Ch. 528. The
    latter cannot be the basis of a secret trust. Even if the donors intentions
    and wishes are made clear and acknowledged by the recipient, that alone is not
    enough to establish a secret trust:
Milsom v. Holien
, 2001 BCSC 868,
    40 E.T.R. (2d) 77, at paras. 15, 35-36, and 42-43.

[51]

At
    trial, Harry and Yehudas Estate clarified that the trust only attached to the
    assets in Elias estate that ended up in Harveys hands through his
    instrumentality. They did not contend that the secret trust attached to Henias
    assets. They took the position that the secret trust was declared under the
    August 17, 2011 document and crystallized on Elias death on October 28,
    2011. All assets received by Harvey from Elias were to be held by Harvey in
    trust for his brothers. The trial judge noted that the primary alleged breach
    of the secret trust was that Harvey facilitated Henias breach of the mutual
    wills agreement. Given that there was no mutual wills agreement, it followed
    that that argument had to be rejected.

[52]

Harry
    advances numerous arguments in support of his position that the trial judge
    erred in her secret trust analysis. He submits that: the three certainties were
    evident on the face of the August 17 document and as such, the trial judge
    erred in finding otherwise; she misapprehended certainty of subject matter; she
    failed to apply equitable principles to her analysis; she failed to consider
    that a legally binding contract was indicative of a trust; she erred in ruling
    that the secret trust claim failed because the mutual wills agreement failed;
    and lastly, she erred in ruling that if there had been a secret trust, it ended
    at Elias death.

[53]

There
    is no need to address all of these arguments as the trial judges factual
    findings on the elements required to establish a secret trust reveal no
    palpable and overriding error and are fatal to Harrys secret trust appeal.

[54]

Most
    fundamentally, there was no transfer or grant from Elias to Harvey. Elias did
    not give anything to Harvey. On Elias death, his assets vested in Henia. Even
    if one could cobble together an argument that this was not the case, as stated
    in
Oosterhoff on Trusts
,
at p. 874, if a gift is made to more than one person, but an agreement is made
    with one only, the others are not bound
[5]
.
    As Harrys counsel stated in submissions on the alleged secret trust, the whole
    case turns on the August 17 document. The trial judge made a finding, available
    to her on the record, that Henia did not participate in the August 17, 2011 document
    which is the basis for Harrys secret trust argument. Not only was there no
    transfer, that document does not contemplate any transfer or grant of Elias
    assets to Harvey.

[55]

Harry
    submits that the corpus of a trust may be a chose in action; the agreement
    between Elias and Harvey constituted a chose in action; and the agreement
    represented a legal right to compel that Elias assets be divided equally among
    the three sons. As such, Harry argues that the trial judge erred in concluding
    that the elements of a secret trust had not been satisfied.

[56]

I
    have difficulty with this argument. I accept that a chose in action may satisfy
    the subject matter requirement of the three certainties, but this does not
    address the absence of any transfer. To repeat, there was no transfer or grant
    pursuant to any alleged secret trust. There was no secret, and there was no
    trust. After Elias death, all his property was to go to Henia.

[57]

On
    the issue of any misappropriation of assets or proceeds from Elias by Harvey
    after August 17, as the trial judge stated, Harvey may be liable to account to
    Elias estate for those receipts. As noted in the aforementioned footnote 31 of
    the trial judges reasons, she was not directed to any evidence that would
    justify Harveys receipt of Elias share of the vendor take-back mortgage,
    proceeds that were to be distributed at the end of August 2011. Indeed, Elias
    had told Harvey that these vendor take-back proceeds should be paid to Elias
    and Henia, each as to their 50% share.

[58]

Nor
    do I see an inconsistency between the trial judges dismissal of the secret
    trust claim and, when dealing with the claim of unconscionable procurement, her
    rejection of Harveys contention that the August 17 document was not binding on
    him. As the trial judge found, Harvey set out to extract an agreement from Elias
    at that time not to change his 2007 will, and he succeeded. However, this did
    not affect the merits of the trial judges secret trust analysis.
    Fundamentally, while unquestionably Elias hoped that Henia would leave her
    estate, which would ultimately encompass his estate as well, to all three sons,
    ultimately that was her decision. As he said in the August 17 document, Henia
    and he both built up the estate and own it together jointly as one pocket. Harrys
    argument effectively serves to disentitle Henia from her inheritance. There is
    no legitimate basis for such an outcome; it is up to Henia to decide what she
    will do with her holdings.

[59]

I
    see no error in the trial judges conclusion on the secret trust claim and
    would dismiss this ground of appeal.

(iii)

Henias
Inter Vivos
Transfers to Harvey

[60]

The
    trial judge found that Harvey had unconscionably procured from Henia assets of
    approximately $8.66 million after Elias died. The result of the trial judges
    determination on unconscionable procurement, coupled with the absence of both a
    mutual wills agreement and a secret trust, was that those assets reverted to
    Henia to deal with as she pleases. Henia has not appealed the finding of
    unconscionable procurement. She did not appeal the transactions that the trial
    judge found to have been unlawfully procured by Harvey because the result was
nihil
    ad rem
, to use her counsels terminology, or irrelevant; the assets
    reverted to her in any event. Nor have Harvey and Ashley appealed the trial
    judges ruling on unconscionable procurement.

[61]

The
    parties did not challenge the validity of the doctrine of unconscionable
    procurement. In the absence of full legal argument on the existence and
    desirability of any doctrine of unconscionable procurement, I do not propose to
    address the merits of any such doctrine and whether grounds to attack
    transactions beyond such traditional grounds as undue influence and incapacity
    should be endorsed. Thus, this decision should not be taken as approval or
    rejection of unconscionable procurement being part of the law of Ontario.

[62]

In
    light of my dismissal of the mutual wills agreement and the secret trust
    claims, the unconscionable procurement appeal can only be of benefit to Henia,
    not to Harry. Even if successful, as counsel for Harry candidly conceded, the
    assets would revert to Henia, not to him. For the purposes of the record, I
    will nonetheless address the appeal.

[63]

The
    trial judge found that Harry did have standing to pursue the unconscionable
    procurement claim as he could be a contingent beneficiary under Henias 2007
    wills. Although Henia challenged Harrys standing to advance such an argument
    at trial, there is no cross-appeal on the issue of standing. Given the parties
    respective positions, I will address the merits of Harrys arguments on
    unconscionable procurement without deciding the issue of standing.

[64]

Henias
    transfers to Harvey and Ashley were considerable. In a June 27, 2011
    document, Henia purported to transfer to Harvey mortgage proceeds from the sale
    of two properties. In April 2012, Henia signed documents in which she agreed to
    compensate Harvey for past and future property management services (the
    Compensation Agreement, valued at approximately $3.9 million, and the Services
    Agreement, valued at approximately $2 million). Also, in April 2012, she proceeded
    to forgive all past indebtedness owing from Harvey to Elias and Henia (valued
    at no less than $1 million). In security documents, Henia purported to secure
    past debts said to be owing from her to Harvey (the Security Documents). After
    Elias died, Henia transferred half interests in commercial real estate to
    Harvey and his daughter, Ashley, in 2013 and 2014 (valued at approximately $15
    million). Since he died, Henias net worth has been depleted by at least 50%
    and she has purported to confirm indebtedness and has granted security over all
    her remaining assets in favour of Harvey and Ashley.

[65]

The
    trial judge declared the Services Agreement, the Compensation Agreement, the
    Security Documents, the June 27, 2011 document, a 2014 blank direction relating
    to the transfer of assets, and funds taken or received in respect of certain vendor
    take-back mortgage proceeds and a refinancing to be void, all steps taken in
    furtherance of these arrangements unwound, and benefits received returned to
    Henia.

[66]

The
    trial judge did not void the April 2012 debt forgiveness, nor the 2013 and 2014
inter vivos
transfers of commercial real estate transferred from Henia
    to Harvey. Those that were not set aside are the subject matter of Harrys
    appeal.

[67]

Harry
    argues that all transactions ought to have been set aside and advances two
    complaints about the trial judges unconscionable procurement analysis.

[68]

First,
    he submits that the findings of the trial judge were logically inconsistent in
    that she relied on Dr. Shulmans evidence to rebut the presumption of
    unconscionable procurement with respect to certain transactions and then
    described it as being unreliable and misinformed with respect to others.

[69]

I
    do not agree with this complaint.

[70]

The
    trial judge laboriously went through each transaction and carefully considered
    whether the presumption of unconscionable procurement had been rebutted. For
    example, the trial judge found that the presumption arose from Harveys active
    involvement in procuring large transfers from Henia. She found that the
    presumption had been rebutted with respect to Henias forgiveness of Harveys
    loans in 2012. Henia signed an acknowledgement describing the past advances as
    gifts and in Dr. Shulmans report, he recorded that Henia had told him that she
    had forgiven these loans to compensate Harvey for his past property management
    services. Henia discussed with Dr. Shulman her forgiveness of Harveys debts
    and the discharge of security in the context of her
bona fide
desire
    to compensate him for his past property management services. Based on the
    evidence before her, it was open to the trial judge to determine that the
    presumption of unconscionable procurement had been rebutted.

[71]

In
    contrast, the trial judge fairly found that Dr. Shulman was missing important information
    and documents to provide context to his discussions with Henia with respect to
    the voided transactions and therefore his assessments could not be relied upon
    to rebut the presumption. Moreover, there was an absence of other evidence to
    satisfy the trial judge that the presumption had been rebutted. The trial
    judges conclusions were not logically inconsistent as alleged.

[72]

Second,
    Harry submits that the trial judge erred in ruling that the large transfers in
    2013 and 2014 from Henia to Ashley were simply gifts. He argues that some
    limits should have been applied to the extent of the gift-giving and the manner
    in which they were made.

[73]

I
    see no error. Again, it was open to the trial judge to reach the decision she
    did as it related to Ashley. The trial judge concluded at para. 211 that the
    conveyances to Ashley and Harvey appeared to be consistent with Henias theme
    of wanting to give Henias half of the Gefen family holdings to Harvey and his
    family. As the trial judge put it at para. 212:

The rationale for the gifts to Ashley was confirmed in the
    trial testimony of both Henia and Ashley about Henias desire to provide a gift
    to a grandchild who she has a good relationship with and who she is proud of,
    and her desire to provide a source of financial assistance to Ashley, and
    through her to her disabled brother. This is consistent with the rationale for
    earlier gifts and financial assistance provided by Henia to Harveys children.

[74]

I
    see no basis on which to interfere with the trial judges findings on these
    transactions.

[75]

In
    conclusion, I would dismiss Harrys appeal on all grounds.

Henias Appeals

[76]

As
    mentioned, Henia advances two appeals from the judgment. I will first address
    the appeal relating to the trial judges identification of the Elias real
    property holdings as of the date of his death, and then her appeal relating to
    the severance of the joint tenancy.

(i)

Identification of Real Property

[77]

The
    trial judges reasons for decision were released on October 17, 2019, and her
    reasons for costs were released on February 14, 2020.

[78]

The
    parties were unable to agree on the form of judgment. The trial judge convened
    a case conference, received written and oral submissions, and settled the
    judgment. Her reasons for the settling of the judgment were released on October
    13, 2020, and the judgment was signed on October 16, 2020.

[79]

At
    issue is para. 5 of that judgment. It states:

THIS COURT ORDERS AND DECLARES THAT as of the date of his
    death, Elias Gefen, either directly or indirectly through holding companies,
    among other assets and interests and without limitation, owned:

a.

50%
    of the property municipally known as 20-26 Kennedy Road, Brampton, Ontario (the
    Eastown Plaza);

b.

50% of the property municipally known as 1095 Kingston Road, Pickering,
    Ontario held by a bare trustee corporation, 1585708 Ontario Limited;

c.

50% of the property municipally known as 1540 Dundas Street East, Whitby,
    Ontario held by a bare trustee corporation, 1700434 Ontario Limited (also known
    as Dundas-Thickson Properties Ltd);

d.

40% of the property municipally known as 1650 Dundas Street East,
    Whitby, Ontario held by a bare trustee corporation, 1393522 Ontario Ltd;

e.

50% of a vendor-take-back mortgage granted by Elias and Henia Gefen over
    the property municipally known as 2421-23 Keele Street, Toronto, Ontario.

[80]

The
    trial judge was satisfied that the question of whether Elias owned interests in
    certain commercial properties said to have formed part of the Gefen Family
    assets at the time of Elias death was put in play by the counterclaims. In
    addition, para. 5 of the judgment corresponded with the express findings made
    in para. 172 of her reasons for judgment. They were linked to, and could
    inform, the interpretation and implementation of the orders contained in the
    remainder of the judgment with respect to the relief for unconscionable procurement.

[81]

The
    trial judge noted that Henia had not asked for an order that some or all of the
    assets owned by Elias at his date of death were held by him on behalf of
    himself and Henia beneficially as joint tenants, and no such order was made.
    She also observed that para. 234 of her reasons contemplated that there could
    be further proceedings to ascertain the assets that comprise Elias estate.

[82]

Henia
    argues that the issue of para. 5 of the judgment only became relevant once the
    costs order was made and parties were required to look to Elias Estate for
    payment. She submits that the trial judge erred in concluding that the issue
    was joined by the pleadings. Moreover, it was unnecessary for the purposes of
    the action to determine Elias assets as of the date of his death. Harry had
    consistently claimed that his entitlement was to a share of Elias and Henias
    assets together, and accordingly, the record was insufficient to allow Henia to
    have meaningful input into the question of Elias ownership. Indeed, the
    parties did not make submissions on whether Elias legally owned the commercial
    real estate, as is evident from the trial judges disposition description at
    para. 248 of her reasons, which is silent on this issue. In addition, the trial
    judge refers to potential assets in para. 234 of her judgment, all pointing
    to the beneficial ownership of assets as between Henia and Elias not being in
    play. Henia thus submits that the trial judge ought not to have ruled on the
    matter.

[83]

In
    her October 17, 2019 reasons for judgment at para. 2, the trial judge set out Harry
    and Yehudas Estate claims and defined Gefen Family Assets saying: Harry and
    Yehudas estate seek a proportionate 1/3 share of the collective wealth and
    assets accumulated by Elias and Henia over their lifetimes, all of which was
    held by Henia following Elias death in 2011 (the Gefen family Assets). She
    stated that they were comprised of cash and other things and included the home
    of Elias and Henia at 11 Townsgate.

[84]

At
    para. 172, she stated:

When Elias died, the Gefen Family Assets included the following
    corporate real estate holdings (these are the managed assets):

a.

Elias Gefen Properties'
    (or EGP's) ownership of 50 per cent of the shares of Dundas-Thickson Properties
    Ltd., the bare trustee owner of a property at 1540 Dundas Street East in
    Whitby, Ontario (the remaining shares being owned by Harvey, as to 40 per cent,
    and by a corporation controlled by Dr. Finkelstein as to the remaining 10 per
    cent);

b.

Elias' ownership
    of 50 per cent of the shares of 1585708 Ontario Limited, the bare trustee owner
    of a property at 1095 Kingston Road in Pickering, Ontario (the remaining shares
    being owned by a corporation controlled by Dr. Finkelstein);

c.

Elias' ownership
    of 40 per cent of the shares of 1393522 Ontario Ltd., the bare trustee owner of
    a property at 1650 Dundas Street West in Whitby, Ontario (the remaining shares
    being owned by a corporation controlled by Harvey, as to 20 per cent, and a
    corporation controlled by Dr. Finkelstein as to the remaining 40 per cent);

d.

Elias' direct
    holding of a 50 per cent interest in a plaza known as Eastown, at 20-26 Kennedy
    Road North, Brampton, Ontario (the other 50 per cent being owned by a
    corporation controlled by Henia's brother and/or his family members).

[85]

She
    explained at para. 173 and following that these ownership interests were
    consistent with what Mr. Gaertner recorded having been told by Elias before he
    died and they were confirmed from the documents made available to the expert,
    Ivor Gottschalk.

[86]

Harry
    moved for the appointment of an Estate Trustee During Litigation for Elias
    Estate. On January 27, 2015, Newbould J. granted the request. His order defined
    the assets of Elias Estate in terms comparable to those used in para. 172 of
    the trial judges reasons for decision and para. 5 of the settled judgment.  The
    Estate Trustee During Litigation was also authorized to prepare an inventory of
    Elias Estate. Newbould J. ordered that the costs of the Estate Trustee During
    Litigation were to be paid out of Elias Estate.
[6]
No one sought to appeal this order. The order noted that submissions were made
    by, amongst others, Henia and Harvey.

[87]

On
    June 27, 2016, Henia amended her Reply and Defence to the Counterclaim of Harry
    to state that at all times, all real estate was held in joint tenancy of Henia
    and Elias or on trust by Elias for himself and Henia.

[88]

Significantly,
    in Harrys prayer for relief in his Amended, Amended, Amended Statement of
    Defence and Counterclaim dated June 30, 2017, he claimed:

48(e)
    a declaration that Elias sole beneficial ownership of co-tenancy interests in
    the following commercial assets never passed from his estate to Henia or any
    other party:

(i)

50%
    co-tenancy interest in the property at
20-26 Kennedy Road in Brampton,
    Ontario (Eastown Plaza)

(ii)

50% co-tenancy interest in the property at 1540 Dundas Street East,
    Whitby (held by Dundas-Thickson Properties Ltd., DTP as a nominee)

(iii)

40% co-tenancy interest in the property at 1650 Dundas Street East,
    Whitby (held by 1393522 Ontario Ltd., 139 as a nominee)

(iv)

50% co-tenancy interest in the property at 1095 Kingston Road, Pickering
    (held by 1585708 Ontario Ltd. 158 as a nominee)

[89]

Harvey,
    Ashley, and Henia denied those claims. In the light of the pleadings, it can
    hardly be said that the issue was not in play.

[90]

In
    addition to the pleadings, both Harrys written opening and his closing
    submissions at trial reveal that the issue of ownership was in play. At para.
    62 of his November 13, 2018 written opening, Harry wrote:

Harvey asserted that Elias had no estate as everything was
    owned jointly by Henia and passed to her by right of survivorship. This is a
    live issue at trial. Harry will submit that the reliable and contemporaneous
    evidence strongly supports the conclusion that the commercial properties
    interests were held by solely Elias beneficially. This evidence, to be filed at
    trial, includes Elias tax returns on which the entirety of the income from
    each of the four commercial properties was declared annually from 2006 to his
    terminal 2011 return.

[91]

Similarly,
    Harrys closing submissions make it obvious that the ownership issue was in
    play. At para. 5 of his written closing submissions, he stated that Harry and
    the Estate of Yehuda Gefen seek a declaration that, among other things, Elias
    estate includes beneficial ownership of the following commercial properties,
    followed by a list of the four properties found in para. 5 of the judgment.

[92]

Contrary
    to Henias submissions on appeal, para. 234 of the trial judges reasons is
    inconclusive. It simply states that [t]o the extent that my judgment
    identifies potential assets that form part of the estate of Elias Gefen, the
    [Estate Trustee During Litigation] may decide to investigate them, including
    any that are in the hands of the beneficiary.

[93]

In
    conclusion, the pleadings, the written opening and the closing submissions all
    support the trial judges conclusion that the issue of ownership was in play.
    Moreover, the issue was fully canvassed before the trial judge as is evident from
    her reasons at para. 172 and following. Although ultimately unsuccessful, the
    composition of Elias estate was also relevant to the secret trust claim and necessary
    to identify the property Harvey was required to relinquish due to the
    unconscionable procurement claim. The trial judges analysis supported
    inclusion of para. 5 in the judgment.

[94]

I
    would dismiss Henias appeal of para. 5 of the judgment.

(ii)

Severance of Joint Tenancy

[95]

Elias
    and Henia purchased the 11 Townsgate condominium as joint tenants in December
    2006. Expecting that Yehuda would survive them, they transferred the property
    to him and themselves each as joint tenants on October 8, 2010. When Elias died
    on October 28, 2011, the rights of the two surviving joint tenants were
    enlarged and the property vested in them jointly.

[96]

As
    previously described, Henia sued Harry and Yehuda in 2013, and Yehuda
    counterclaimed on March 19, 2014.

[97]

Henia
    signed an acknowledgment and direction dated July 28, 2014, and instructed her
    lawyer, Nestor Wolicki, to sever her joint tenancy with Yehuda. Mr. Wolicki
    witnessed the document but failed to follow her instructions and the signed
    acknowledgment and direction document was never registered on title. It is not
    disputed that Henia authorized and signed the acknowledgment and direction.

[98]

Yehuda
    sought an order for temporary dependents support from his mothers assets, as
    he alleged that she now had all of his late fathers assets under her control.
    The application was heard by Mesbur J. on November 23, 2015. Yehuda had polio since
    the age of two and suffered from various post-polio problems. He had a stroke
    in 2012, a heart attack in 2013, and had never worked for an arms length
    employer in his 64 years. His last employment was in the family carpet store 18
    years prior to his application for support.

[99]

Mesbur
    J. decided that Yehuda was entitled to temporary support. At para. 61 of her
    reasons, she stated that Henia raised the issue of how the estate would be made
    whole if the trial judge ultimately determined that Yehuda was not a dependent
    or granted a lower support order than what she had ordered on a temporary basis.
    Mesbur J. determined that Yehudas interest in the condominium could be charged
    with the repayment obligation and authorized the order to be registered against
    Yehudas interest in order to secure any potential repayment. Under the heading
    Disposition she wrote:

For all these reasons, and without prejudice to the rights of
    any party to argue otherwise on the return of the application, I make the
    following order:

***

c) If [Yehuda] is ultimately determined not to be dependent,
    any amounts paid to him pursuant to this order will be repaid to the payor
    forthwith. [Yehudas] interest in the property known municipally as Unit 605,
    11 Townsgate Drive, Vaughan, Ontario may be charged with repayment. This order
    may be registered against [Yehudas] interest in the property in order to
    secure any ultimate repayment to the payor, if [Yehuda] is required to make a
    repayment.

No one sought to challenge or appeal Mesbur J.s
    decision.

[100]

Yehuda died on May 6,
    2016. Either Henia, or Henia and Harvey, instructed Mr. Wolicki to register a
    survivorship application on title on the basis that Henia was now the sole
    surviving joint tenant. Yehudas Estate challenged this registration in court on
    the basis that the joint tenancy in Townsgate had been severed prior to
    Yehudas death.

[101]

The trial judge agreed
    with Yehudas Estate. She described the three ways in which a joint tenancy can
    be severed as set out in
Hansen Estate v. Hansen
, 2012 ONCA 112, 288
    O.A.C. 116, at para. 34:

Rule 1: unilaterally acting
    on ones own share, such as selling or encumbering it;

Rule 2: a mutual agreement
    between the co-owners to sever the joint tenancy; and

Rule 3: any course of
    dealing sufficient to intimate that the interests of all were mutually treated
    as constituting a tenancy in common.

[102]

The trial judge found
    that Rules 1 and 3 were met. She observed that Henias conduct in her
    unilateral execution of the acknowledgment and direction and in the concern she
    raised about security was the very type of conduct that equity raises as an
    estoppel. The trial judge determined that the joint tenancy had been severed by
    (i) the unilateral acts of Henia in authorizing and directing a severance of
    the joint tenancy in 2014; (ii) by those of Yehuda, in permitting his interest
    to be encumbered as security for any repayment obligation he may have in the
    future; and (iii) by their mutual course of dealings in connection with the
    order of Mesbur J. in 2015 which treated their interests as constituting a
    tenancy in common that neither of them challenged on appeal. The trial judge therefore
    declared Henias survivorship application to be void and directed the Registrar
    to correct the Registry to reflect that the Townsgate property was owned by
    Henia and Yehudas Estate as tenants in common. She also ordered that Yehudas
    Estates 50% interest was only to be liquidated when Henia moved out of the
    condominium.

[103]

Henia appeals from
    this judgment. She advances two arguments.

[104]

First, Henia submits
    that the acknowledgement and direction document was never registered nor
    delivered to Yehuda or anyone on his behalf. As such Yehuda died without any
    knowledge of the document. She submits that an uncommunicated intention is
    insufficient; absent communication, any severance was ineffective and the trial
    judge erred in finding otherwise.

[105]

Second, she submits
    that the trial judge erred in finding that Henia sought and was granted
    security on Yehudas interest. She maintains that a fair reading of Mesbur J.s
    endorsement makes it manifest that Henia did not seek the protection given to
    her. Rather, it was given of the trial judges own volition and not at Henias
    request. Henia asserts that Yehudas proposal for protection was not tied to
    his interest in Townsgate but to his share, if successful, in the main action.

[106]

The parties do not
    dispute that the trial judge identified the correct legal test as set out in
Hansen
    Estate
. The application of this test is a fact-specific inquiry:
Marley v. Salga
,
    2020 ONCA 104, 56 E.T.R. (4th) 1, at para. 2.

[107]

As I am of the view
    that the trial judge correctly determined that the joint tenancy was severed by
    Yehudas and Henias mutual course of dealing in connection with Mesbur J.s
    order, there is no need to determine whether a declaration of unilateral
    intention is insufficient to sever a joint tenancy. As stated by this court in
Jansen
    v. Niels Estate
, 2017 ONCA 312, 137 O.R. (3d) 709, at para. 26, it is not
    clear that a unilateral expression of intention is sufficient to achieve
    severance.

[108]

Based on Mesbur J.s reasons,
    it is not evident that Henia proposed the security that was the subject matter
    of Mesbur J.s disposition but, contrary to Henias submissions, the trial
    judge did not make that finding. Rather, she correctly identified Henias
    stated concern before Mesbur J. Henia raised the issue of reimbursement if the
    trial judge ultimately decided that Yehuda was not a dependent or if the quantum
    of support were reduced.

[109]

Neither Henia nor
    Yehuda sought to oppose or challenge Mesbur J.s disposition in any way.
    Clearly Yehuda permitted his interest to stand as security and neither he nor
    Henia took any steps to appeal Mesbur J.s order. The requirement for mutual
    knowledge and intention was satisfied by the trial judges reference to
    Yehudas argument at para. 15: they were each aware of the other's acceptance
    of this encumbrance, which necessarily would require their interests to be held
    as tenants in common since an encumbrance of Henia's own interest in the
    Townsgate Property would clearly not address the potential prejudice.

[110]

Moreover, the order
    would be consistent with Henias instructions to Mr. Wolicki that the
    joint tenancy be severed. Standing alone and in the absence of communication to
    Yehuda, it may be that this instruction was insufficient to sever. However, it
    certainly may serve to assist in informing Henias intentions in the 2014 to
    2015 timeframe. Mutuality for the purposes of Rule 3 may be inferred from the
    course of dealing between the parties:
Hansen
, at para. 36. When the
    facts are examined in their totality, Henias and Yehudas course of dealing
    was sufficient to intimate that their interests were mutually treated as
    constituting a tenancy in common.

[111]

As stated at para. 35
    of
Hansen
, severance under Rule 3 operates in equity:

Rule 3 operates so as to prevent a party from
    asserting a right of survivorship where doing so would not do justice between
    the parties. In the words of Professor Ziff, at p. 345, the best way to regard
    matters is to say that equity will intervene to estop the parties, because of
    their conduct, from attempting to assert a right of survivorship.
[7]
What is determinative under this rule is the expression of intention by the
    co-owners as evidenced by their conduct. (citation omitted).

[112]

I am not persuaded
    that the trial judge erred in her conclusion that the joint tenancy was
    severed. I would dismiss Henias appeal.

Disposition

[113]

In conclusion, for
    these reasons, I would dismiss Harrys and Henias appeals in their entirety.

[114]

The parties asked to
    make written submissions on costs following the release of reasons for
    decision. Henia shall serve her submissions on Harrys appeals by March 9, 2022;
    Harry shall serve his in response and those relating to his successful
    resistance of Henias appeal of para. 5 of the judgment by March 14, 2022;
    Lucia Saunders shall serve her submissions on the severance appeal by March 9,
    2022; and Henia shall serve responding submissions on Henias appeals by March 14,
    2022. The submissions of each party are not to exceed 10 pages in length.

Released: March 2, 2022 S.E.P.

S.E. Pepall J.A.

I agree. M. Tulloch
    J.A.

I agree. L.B. Roberts
    J.A.

[1]
This included a claim by Harry and Yehuda against Harvey for maintenance of
    Henias action against them. The trial judge dismissed this claim and it is not
    in issue on the appeal.

[2]

The October 2007 will.

[3]

As a will can always be revoked, if a party makes another will
    in spite of the agreement, that will, if valid, may still be probated, but the
    property will be subject to a constructive trust: Albert H. Oosterhoff
et al
.
,
Oosterhoff on Wills
, 9th ed. (Toronto: Thomson Reuters, 2021), at p. 136.

[4]

There is no question that testamentary freedom is
an
    important social interest that has long been recognized in our society as
    firmly rooted in our law:
Spence v. BMO
    Trust Co.,
2016 ONCA 196, 129 O.R. (3d) 561, at para. 30

[5]

Absent a joint tenancy, which was not present here.

[6]

Subsequently, Penny J. made an order on September 26, 2018,
    entitling the Estate Trustee During Litigation to claim from the Property
    Interests of Elias.

[7]

Bruce Ziff,
Principles
    of Property Law
, 5th ed. (Toronto: Carswell, 2010).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nazir, 2022 ONCA 176

DATE: 20220302

DOCKET: C69180

Tulloch, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Nazir

Appellant

Dan Stein, for the appellant

Alexander Hrybinsky, for the respondent

Heard: February 23, 2022 by video conference

On appeal from the conviction entered on December 13,
    2019 and the sentence imposed on September 3, 2020 by Justice Wailan Low of the
    Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of attempt murder,
    aggravated assault, two counts of uttering threats, and two counts of failure
    to comply with probation. He was sentenced to 13 years in prison, less credit
    for pretrial custody. He appeals against conviction and sentence.

[2]

The convictions arose out of the appellants knife attack on two of his
    sisters-in-law and his niece at the family home. One sister-in-law, Rakhee, was
    injured severely. The other sister-in-law, Wazila, protected herself and her
    daughter Alyssa from the attack by locking themselves in an upstairs bathroom
    until the police came to arrest the appellant. The issue at trial was whether
    the appellant formed the intent to kill. The voluntariness of his utterances to
    the police following the attacks was also in issue.

[3]

The appellant raises four issues on appeal:

1.

Did the trial
    judge err by focusing exclusively on capacity to form intent rather than actual
    intent?

2.

Did the trial
    judge err by admitting opinion evidence regarding the appellants credibility
    and demeanour?

3.

Did the trial
    judge misapprehend the evidence as to the appellants intoxication and state of
    mind?

4.

Did the trial
    judge err with respect to the use of the appellants out-of-court statement
    made to Officer Litster-MacLeod?

[4]

In addition, the appellant seeks leave to appeal sentence, arguing that the
    sentence is excessive.

[5]

The appeal is dismissed for the reasons that follow.

The trial judge did not err by focusing exclusively on
    capacity to form intent rather than actual intent

[6]

The appellants argument focuses on the convictions for the attempted murder
    of Wazila and Alyssa Nazir. He says that the trial judge focused on capacity
    and failed to consider whether he had the actual intention required.

[7]

There is no merit to this argument.

[8]

The trial judge correctly framed the issue of whether the appellant had
    the intention to cause death. She fairly set out the appellants position and
    specifically responded to it, finding that it was an inescapable inference
    that the appellant had the intention to cause the death of Rakhee. In essence,
    this was a continuous series of events: the appellants intention to kill
    Rakhee was redirected to Wazila and Alyssa once Rakhee escaped. The trial judge
    found that the existence and contemporaneity of the verbal death threat,
    following them upstairs, bringing knives, and attempting to pry open the
    bathroom door with a screwdriver led only to the inference that the appellant
    intended to cause their death. These findings are amply supported by the record
    and there is no basis to impugn them.

The trial judge did not err by admitting opinion evidence
    regarding the appellants credibility and demeanour

[9]

The appellant submits that Officer Lister-MacLeod was permitted to
    testify as to his demeanour, honesty, malingering, and other inappropriate
    matters, which infected the trial judges reasoning process. He acknowledges
    that trial counsel did not object to this evidence and that one of the most
    egregious comments was elicited in cross-examination of the officer.

[10]

There
    is no merit to this submission. This was a judge-alone trial, and it is
    apparent that the trial judge did not rely upon inadmissible opinion evidence
    in reaching her conclusion. The trial judge is presumed to know the law, and it
    cannot be assumed in the absence of a self-instruction that she improperly
    relied on the opinion evidence. There is no basis to suggest that she
    implicitly embraced this evidence or that there is an appearance of
    unfairness.

The trial judge did not misapprehend the evidence

[11]

The
    appellant argues that the trial judge wrongly relied on the evidence of Officer
    Lister-MacLeod and failed to address inconsistent evidence concerning the
    appellants impairment, including the expert toxicology evidence of Dr. Mayer.

[12]

There
    is no merit to this argument.

[13]

The
    trial judge reviewed the degrees of intoxication set out by the Supreme Court
    in
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523 and carefully
    reviewed the toxicology evidence of Dr. Mayer. She noted that although Dr.
    Mayer calculated that the appellant had an estimated BAC level indicative of
    impairment, it was not possible to determine the precise nature of the impact
    of alcohol on an individual. Dr. Mayer also could not opine on the appellants
    actual level of impairment, his ability to form the requisite intent or his
    ability to foresee the consequences of his actions.

[14]

The
    trial judge reviewed the conduct of the appellant following his arrest and made
    findings that were open to her on the evidence. The appellants speech was not
    slurred, his gait was not impaired, and he related lucid, cogent, and detailed
    particulars to Officer Lister-MacLeod. This was indicative of an operating
    mind. So too was the appellants ability to respond to questions and requests,
    along with his compliance with Officer Lister-MacLeods admonition when he
    flirted with her and the hospital staff. It was open to the trial judge to find
    that he was able to appreciate the consequences of his actions despite a high
    BAC level.

The trial judges use of the appellants out-of-court statements
    occasioned no prejudice

[15]

The
    appellant argues that the trial judge erred in characterizing his statements as
    an attempt to undermine the credibility of the complainants. The appellant
    submits that his statements demonstrated his inaccurate, confused recollection,
    suggesting a higher degree of impairment, which affected the
mens rea
for attempt murder.

[16]

The
    respondent argues that any mischaracterization of the defence position at trial
    was insignificant in the context of the trial and could not have affected the
    outcome. We agree.

[17]

There
    was ample evidence supporting the trial judges conclusion that the appellants
    memory was not impaired. Moreover, even if trial counsels submission was
    mischaracterized, the trial judge did not fail to apply even scrutiny to the
    appellants statement. She acknowledged exculpatory aspects of the appellants
    statement but based her decision on the evidence as a whole. This ground of
    appeal fails.

The sentence was fit

[18]

We
    see no error in law or in principle, nor was the 13-year sentence imposed
    demonstrably unfit, having regard to the brutal and vicious nature of the
    attack. There is no basis for this court to interfere with the sentence
    imposed.

Conclusion

[19]

The
    appeal from conviction is dismissed. Leave to appeal sentence is granted, but
    the appeal is dismissed.

M. Tulloch J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2501306 Ontario Inc. v. Country
    Garden Academy Inc., 2022 ONCA 177

DATE: 20220228

DOCKET: C69561

Simmons,
    Harvison Young and Zarnett JJ.A.

BETWEEN

2501306
    Ontario Inc.

Applicant (Respondent)

and

Country
    Garden Academy Inc., (o/a) Country Garden Montessori Academy

Respondent (Appellant)

Gwendolyn L. Adrian, for the appellant

Sara Erskine, for the respondent

Heard: February 22, 2022 by video conference

On
    appeal from the judgment of Justice C.F. de Sa of the Superior Court of Justice,
    dated May 19, 2021.

REASONS FOR DECISION

[1]

Following the oral hearing we dismissed this
    appeal for reasons to follow and denied the respondents request for leave to
    cross-appeal costs. These are our reasons.

[2]

The appellant operates a Montessori school in
    premises it rents from the respondent. On March 31, 2020, the appellant
    exercised its option to renew its lease for what would be a third three-year
    term running from December 1, 2020 to November 30, 2023.

[3]

Under the terms of the lease, the Minimum Rent
    during any renewal was to be negotiated 90 days prior to the commencement of
    the renewal term and "be based on the prevailing market rates at the time
    of renewal for comparable premises."

[4]

As the parties were unable to agree on the
    Minimum Rent during the renewal term, the respondent applied under rule 14.05
    for a declaration that the Minimum Rent payable would be $23 per square foot
    per year.

[5]

The Minimum Rent payable during the original
    three-year term from November 27, 2014 to November 30, 2017 was $12.36 per
    square foot; during the second three-year term from December 1, 2017 to
    November 30, 2020 it was $13.28 per square foot.

[6]

The respondent was not the landlord when the
    lease was first negotiated. It acquired the property in early 2018, after the
    Minimum Rent for the second three‑year term had been negotiated.

[7]

Both parties filed expert evidence on the
    application as to the market rate that should be apply during the third renewal
    term. The appellant's expert filed two reports. The first report as of June
    2020 estimated the market rate at $14 to $16 per square foot. The second report
    dated November 27, 2020 estimated the market rate at $12 to 14 per square foot.

[8]

The respondent's expert concluded that the
    market rate as of August 5, 2020 ranged from $20 to $25 per square foot and
    provided a best estimate of $23 per square foot.

[9]

In his reasons, the application judge reviewed
    the evidence adduced concerning the nature of the property, its history, the
    leasing history and the expert evidence. He began his analysis by observing
    that it was evident from the experts reports that the determination of the
    appropriate rate for the Minimum Rent for a comparable premise is hardly a science.
    Location, surrounding neighbourhood, size, condition, amenities, demand, zoning
    and available uses were all relevant factors to be considered.

[10]

The application judge noted that the lease specified
    that the premises should be used as an educational facility. He accepted the
    respondent's position that use was an important factor in determining the
    prevailing market rate for comparable premises at the time of renewal.

[11]

Concerning the experts reports, the application
    judge observed that the appellant's expert referenced a number of comparables
    that lacked the amenities and improvements of the subject property.

[12]

However, the application judge also recognized
    that the property's zoning permitted limited uses, namely Parks & Open
    Space, with exceptions for only five uses: commercial recreational centre;
    banquet hall; place of assembly; day nursery; and elementary/secondary school. This
    was a factor that would require a downward adjustment from the rental rates on
    some of the comparables. He said:

A property remotely located which is limited
    in uses cannot be fairly compared to properties located on busy traffic
    arteries that allow dozens of general uses without a downward adjustment
    which takes into account the superior attributes and leasing potential of the
    comparable property.

[13]

Based on the comparables put forward by both
    experts and the other evidence adduced on the application, the application
    judge concluded that the Minimum Rent for the renewal period should be $18 per
    square foot.

[14]

The appellant raises three issues on appeal.

[15]

First, the appellant submits that the
    application judge erred in law by failing to interpret the term comparable
    premises in a manner consistent with how the appellant and the original
    landlord previously interpreted that term. The appellant asserts that the
    application judge disregarded unchallenged evidence that when previously
    determining market rent for comparable premises, the original owner/former
    landlord did not focus on properties that could be used as an educational
    facility but rather focused on properties located in industrial parks and that
    were subject to zoning restrictions that had limited uses.

[16]

We did not accept this submission. Even assuming
    the parties conduct in determining previous Minimum Rent would be relevant to
    the determination of the prevailing market rates at the time of renewal for
    comparable premises, there was no evidence capable of supporting the
    appellants submission. The only evidence directed to the issue consisted of
    two paragraphs in the affidavit filed on the appellants behalf by Dan
    Hilsenteger. Mr. Hilsenteger asserted that he and the principal of the original
    landlord came to an agreement on the original rental rate based on similar
    properties in the area which were also located in industrial parks. Concerning
    the 2017 renewal, Mr. Hilsenteger deposed that he and the former landlord
    agreed on a rate based on similar properties or similar properties in the
    area. None of the similar properties used as comparables in the past were
    identified. There was no evidence of the rental rates for those properties at
    the time of the renewal in issue. The limited evidence adduced by the appellant
    concerning prior comparables that were used is simply not capable of supporting
    the position it advances.

[17]

The appellants second submission is that the
    application judge erred in law by failing to consider the very limited uses
    allowed by the propertys zoning. We rejected this submission. As we have said,
    the application judge described the permitted uses in his reasons and noted
    specifically that a downward adjustment from certain comparables would be
    required for a remotely located property with limited uses.

[18]

The appellants third submission is that the
    application judge made a palpable and overriding error by failing to consider
    evidence of bad faith/wrongful conduct on the part of the respondent
    demonstrating the respondent was motivated to force the appellant from the
    property by way of extortive pricing so he could have it for his own use. We
    rejected this submission.

[19]

The application judges decision concerning the
    Minimum Rent for the renewal period was based on evidence concerning the terms
    of the lease, the nature of the property and expert evidence concerning
    prevailing market rates for comparable premises. There was no evidence the
    respondents experts evidence was in any way influenced or tainted by alleged
    wrongful conduct or improper motivations on the part of the respondent.

[20]

As for the cross-appeal, in our view, this was
    not a case for granting leave to appeal costs.

[21]

Based on the foregoing reasons, we dismissed the
    appeal and denied the respondents request for leave to appeal costs. Costs of
    the appeal are to the respondent on a partial indemnity scale fixed in the
    agreed upon amount of $7,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A.

Harvison Young J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Stamatopoulos v. Harris, 2022 ONCA 179

DATE: 20220303

DOCKET: C66776

Simmons, Harvison Young and Zarnett JJ.A.

BETWEEN

Stamatis
    (Steve) Stamatopoulos, Nikolaos Stamatopoulos, Christothea Stamatopoulos,
    Kyriakos Stamatopoulos and Stephanie Clarke

Plaintiffs (Appellants)

and

Richard J. Harris,
    The Regional Municipality of Durham
, Her Majesty the Queen in Right of the
    Province of Ontario, represented by the Minister of Transportation for the Province
    of Ontario and State Farm Insurance

Defendants (
Respondents
)

Allan Rouben, for the appellants

David G. Boghosian and Sachin Persaud, for the respondent, the Regional
    Municipality of Durham

Brian M. Bangay, for the respondent, Richard J. Harris

Heard: February 23, 2022 by video conference

On appeal from the
    judgment of Justice J. Copeland of the Superior Court of Justice, dated March
    6, 2019, with reasons at 2019 ONSC 603.

REASONS FOR DECISION

[1]

This is an appeal from a judgment dismissing an action
    against the Regional Municipality of Durham pursuant to s. 44 of the
Municipal
    Act, 2001,
S.O. 2001, c. 25, on the basis that it
    had failed to keep a roadway in a reasonable state of repair. The appellants
    commenced an action against Durham and the respondent, Mr. Harris, following a
    motor vehicle accident in November 2004. The appellant, Mr. Stamatopoulos, was
    a front seat passenger in a vehicle driven by Mr. Harris. The two men were travelling
    on the road around 8:30 p.m. when Mr. Harris lost control of the vehicle while driving
    over a depression or dip in the roadway. The vehicle rotated, left the roadway
    and travelled across the shoulder and into a ditch, where it hit a hydro pole.
    The vehicle travelled a further distance and collided, passenger side, into a
    group of trees and an embankment. Mr. Stamatopoulos suffered life altering
    injuries.

[2]

Mr. Harris conceded that he was negligent and
    that his driving was a cause of the collision. He reached a settlement with the
    appellants in 2010. However, he and the appellants alleged that the road where
    the collision occurred was in a state of non-repair, due to the dip in the
    road, and that this was also a cause of the collision. Damages were settled
    before the trial. The sole issues at trial were whether the respondent Durham
    was liable in negligence and, if so, what the apportionment of damages should
    be.

[3]

The trial judge found that the roadway was not in
    a state of non-repair. The appellants appeal from that finding. Mr. Harris
    appealed initially, but has since abandoned his appeal. He filed a factum only
    in relation to the costs award in the event the appellants were successful.

[4]

The appellants argue that the trial judge
    committed an extricable error of law in analyzing the question of whether the
    road was in a state of non-repair. This was the result of two related errors.
    To begin with, the appellants submit that the trial judge erred by measuring Durhams
    standard of care from the perspective of Mr. Harris rather than that of the
    ordinary reasonable driver.
Second, she compounded this
    error by adopting too low a standard for conduct that takes a driver outside of
    the scope of an ordinary reasonable driver. They argue that Mr. Harris
    negligence was not of such a magnitude to take him outside the scope of an
    ordinary reasonable driver
. Her approach, they submit, was contrary to the
    authorities, and distorted the proper analysis of the claim as set out in
Fordham
    v Dutton-Dunwich (Municipality)
, 2014 ONCA 891, 327
    O.A.C. 302, by conflating the question of the drivers manner of driving with
    the question of whether the road was in a state of non-repair.

[5]

We do not agree and dismiss the appeal for the
    following reasons.

[6]

There is no dispute that the applicable four-part
    test for establishing the statutory cause of action in negligence against a
    municipality was set out by this court in
Fordham
at para. 26:

1.

Non-repair: The plaintiff must prove on a
    balance of probabilities that the municipality failed to keep the road in
    question in a reasonable state of repair.

2.

Causation: The plaintiff must prove the non-repair caused the
    accident.

3.

Statutory Defences: Proof of non-repair and
    causation establish a
prima facie
case of liability against a
    municipality. The municipality then has the onus of establishing that at least
    one of the three defences in s. 44(3) applies.

4.

Contributory Negligence: A municipality that cannot establish any of
    the three defences in s. 44(3) will be found liable. The municipality can,
    however, show the plaintiffs driving caused or contributed to the plaintiffs
    injuries.

[7]

First, we do not agree that the trial judge
    conflated Mr. Harris negligence with her finding that the road was not in a
    state of non-repair such that it would have presented a hazard to an ordinary
    reasonable driver. She summarized the factors that she considered in
    determining whether the road was in such a state of non-repair that it would
    have presented a hazard to an ordinary reasonable driver at para. 483 of her
    reasons:

In considering
    whether the dip in the road constituted a state of non-repair, I consider the
    following factors: the measurements of the length and depth of the dip,
    including the expert evidence that I accept (primarily that of Mr. Bigelow in
    terms of his survey, and Mr. Malone); the photos of the dip (primarily those
    taken by Mr. Bigelow, Mr. Morden, and Mr. Harris sister); the qualitative
    evidence of witnesses about driving over the dip, in particular the civilian
    witnesses and the police drive-throughs; the absence of an accident history at
    that location; and Mr. Harris manner of driving on the evening of the
    collision, including his excessive speed, and his distraction.

[8]

The trial judge then analyzed all of the factors
    other than Mr. Harris manner of driving. This included evidence that driving
    over the dip at and over the speed limit did not create problems. She concluded,
    at para. 495 of her reasons, on the basis of those factors that the road was
    not in a state of non-repair. She stated, [t]aking these factors together, I
    find that the plaintiffs have failed to persuade me on a balance of
    probabilities that the dip in the road constituted a state of non-repair. I am
    not persuaded that the dip posed an unreasonable risk to an ordinary reasonable
    driver. There was ample evidence to support this, including the qualitative
    evidence of witnesses who live in the area and knew the dip, the agreed fact that
    there had been no prior collisions identified at this site attributable to the
    depression since 1993, police evidence of runs conducted over the dip at
    various speeds up to 120 km per hour, applicable guidelines regarding road
    depressions, as well as guidelines regarding signage for road hazards.

[9]

Only after so concluding did the trial judge
    turn to Mr. Harris driving, and how his manner of driving related to whether
    the road was in a state of non-repair such as to create a risk to the ordinary
    reasonable driver. She made a finding of fact that Mr. Harris was driving 100 km
    per hour when he began to cross the dip, and that he was distracted as he had no
    hands on the wheel, having just opened a pop bottle. He was not an ordinary
    reasonable driver.

[10]

We do not accept the premise that, because the
    trial judge considered Mr. Harris manner of driving, she conflated the
    analysis. She did not reason that, because he was driving in a manner that was
    not that of an ordinary reasonable driver, the road was not in a state of
    non-repair. She began her analysis of this issue by setting out the
Fordham
test and focusing on the question of whether the dip in the road
    constituted a state of non-repair. Having found that it was not a risk to the
    ordinary reasonable driver, she considered Mr. Harris driving, and found that
    he was not driving as an ordinary reasonable driver, which was consistent with
    her finding on the state of the road. Had she found that Mr. Harris manner of
    driving was that of the ordinary reasonable driver, and an accident had still
    occurred, she would have had to reconsider whether the road posed a hazard to
    the ordinary reasonable driver.

[11]

We see no error in taking the manner of Mr.
    Harris driving into account as a part of the trial judges consideration of
    whether the road was in a state of non-repair. Read in context, this was simply
    one factor considered.

[12]

Nor do we do agree that the trial judge erred by
    adopting too low a standard (100 km) for conduct taking a driver beyond the
    scope of an ordinary reasonable driver. The appellants argue that this finding
    was unreasonable on the basis that a significant percentage of drivers travel
    the same stretch of road at speeds exceeding 90 km an hour and that this
    effectively immunizes the municipality from liability pursuant to s. 44 of the
    Act.

[13]

The trial judge found that the ordinary
    reasonable driver would not exceed the speed of 100 km per hour on that stretch
    of road. This was a finding of fact that she reached after a careful review of
    the evidence. We see no basis for interfering with this finding.

[14]

The appeal is dismissed. Costs are payable by the appellants to the
    respondent Durham in the amount of $40,000 inclusive of HST and disbursements.

Janet Simmons J.A.

A. Harvison Young
    J.A.

B. Zarnett J.A.