COURT OF APPEAL FOR ONTARIO

CITATION: Neuberger v. York, 2016 ONCA 191

DATE: 20160308

DOCKET: C59813 and C59918

Gillese, van Rensburg and Miller JJ.A.

In the Estate of Chaim Neuberger, deceased

BETWEEN

Edie Neuberger in her capacity as the named
    Estate Trustee of the Primary Will of Chaim Neuberger and in capacity as the
    named Estate Trustee of the Secondary Will of Chaim Neuberger

Applicant (Appellant)

and

Myra York in her personal capacity, in her capacity as the named Estate
    Trustee of the Primary Will of Chaim Neuberger, in her capacity as the named
    Estate Trustee of the Secondary Will of Chaim Neuberger and in her capacity as
    the Attorney for Property or Attorney for Property
de son tort
for Chaim
    Neuberger
,
Adam Jesin-Neuberger
,
Shawna Jesin-Neuberger, Jeremy Jesin-Neuberger,
    Jessica Jesin-Neuberger, Jaclyn Jesin-Neuberger, Sonny York, Spencer York and
    Laura York

Respondents (Appellant/
Respondents
)

Chris G. Paliare, Megan E. Shortreed and Jean-Claude
    Killey, for the appellant Edie Neuberger

Kimberly A. Whaley, Benjamin Arkin and Arieh A. Bloom,
    for the appellant Adam Jesin-Neuberger

Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for the
    respondent Myra York in all capacities

Clare E. Burns and Bianca La Neve, for the respondents
    Sonny York, Laura York and Spencer York

Heard: October 8 and 9, 2015

On appeal from the judgment of Justice Susan E. Greer of
    the Superior Court of Justice, dated November 21, 2014, with reasons reported
    at 2014 ONSC 6706.

Gillese J.A.:

[1]

Rule 75 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
[1]
governs contentious estate proceedings. Rule 75.01 empowers an estate trustee
    or interested person to make an application to have a testamentary instrument
    proved in such manner as the court directs. It reads as follows:

75.01
An estate trustee or any person appearing to have a financial
    interest in an estate may make an application under rule 75.06 to have a
    testamentary instrument that is being put forward as the last will of the
    deceased proved in such manner as the court directs.

[2]

Does rule 75.01 give an interested person an automatic right to have a
    will proved in solemn form?  Does estoppel lie to prevent an interested person
    from pursuing a challenge to the validity of a will pursuant to rule 75? How do
    the policy considerations which inform the law of probate impact on these
    questions? These appeals depend upon the answers to those questions.

I.

OVERVIEW

[3]

Chaim and Sarah
Neuberger had two daughters, Edie and
    Myra.
[2]
Mr. Neubergers long-standing intention was to provide for his daughters equally,
    on his death.

[4]

Edie (Neuberger)
is married to Norman Jesin. They
    have five adult children, one of whom is Adam Jesin-Neuberger.

[5]

Myra (York) is married to Joel York. They have three adult children. I
    will refer to Myra and her children together as the York Parties or the
    respondents.

[6]

Mr. Neuberger
died on September 25, 2012, at age 86. His
    wife predeceased him. He left a real estate empire estimated to be worth well over
    $100 million. Mr. Neuberger is survived by his two daughters and their adult children.
    None of his grandchildren have children of their own yet.

[7]

Mr. Neuberger executed primary and secondary wills in
    2004 (the 2004 Wills) and again in 2010 (the 2010 Wills). Although both
    sets of wills leave his estate to his two daughters and their children, they
    differ in one significant way, which allegedly results in Myras share
    exceeding Edies by approximately $13 million.

[8]

In both sets of wills, Edie and Myra are named co-estate trustees. Edie
    took a number of steps in her capacity as co-estate trustee under the 2010
    Wills. She then started legal proceedings to challenge the validity of the 2010
    Wills, alleging that her father lacked testamentary capacity when he executed them.

[9]

Adam, too, seeks to challenge the validity of the 2010 Wills. He has separate
    legal representation and has taken separate legal steps in that regard. I will
    refer to Edie and Adams proceedings together as the Wills Challenges.

[10]

The
    York Parties moved to have the Wills Challenges dismissed on the basis that
    they are barred by the equitable doctrines of estoppel by representation and
    estoppel by convention.

[11]

By
    order dated November 21, 2014 (the Order), the motion was granted. Both Edie
    and Adam appeal (together, the appellants).

[12]

For
    the reasons that follow, I would allow the appeals.

II.

BACKGROUND

[13]

The
    following information is drawn from the record and provided in order to give context
    to the issues and their analysis. It is not to be taken as findings of fact.

A.

The

Testator
     Chaim Neuberger

[14]

Chaim Neuberger was born on August 20, 1930, in
    Poland. He died on September 25, 2012. A survivor of the Holocaust, he came to
    Canada in the 1940s.

[15]

Mr. Neuberger was a very intelligent and savvy
    businessman. Over the course of his life in Canada, he amassed a multi-million
    dollar real estate empire that he owned and managed with his brother-in-law,
    Harry Sporer. From 2004 to 2011, Messrs. Neuberger and Sporer and their
    respective sons-in-law, Joel York and Michael Lax, managed the business.

B.

2004 Butterfly and Wills

[16]

Until 2004, that part of the family business
    relevant to Mr. Neuberger's estate plan was operated as Nuberg & Dale
    Construction Limited ("N&D").

[17]

In 2004, Mr. Neuberger effected a
    "butterfly" transaction, which split N&Ds assets into two parts.
    One part was retained in N&D, and the other was transferred to 159179
    Ontario Inc. (#179).
[3]
His intention was that, on his death, Myra would inherit N&D and Edie would
    inherit #179. The purpose of the butterfly transaction was to facilitate Mr.
    Neuberger's wish to have his wealth divided equally between his daughters, on
    his death.

[18]

Contemporaneously with the butterfly
    transaction, Mr. Neuberger executed the 2004 Wills. The 2004 Wills gave Edie
    and Myra voting control over #179 and N&D respectively.  It is unclear from
    the record when Edie first obtained copies of the 2004 Wills.  However,
    according to para. 44 of the York Parties factum, they only produced the 2004
    Wills sometime after March 2014 but before August 28 and 29, 2014, when the
    motion below was heard.

[19]

There is no dispute that when Mr. Neuberger
    executed the 2004 Wills, he had testamentary capacity.

C.

2010 Estate Freeze and Wills

[20]

In 2010, Mr. Neuberger effected an estate freeze,
which resulted in the common shares of #179 and N&D being held by
    separate trusts.
The beneficiaries of the #179 trust are Edie
    and her children. The beneficiaries of the N&D trust are Myra and her
    children. The effective date of the estate freeze was November 30, 2010. Mr.
    Neuberger retained preference shares in each of #179 and N&D, allowing him
    continued effective control over them. Except for ownership of the common
    shares, the business of N&D and #179 did not change as a result of the
    estate freeze.

[21]

The 2010 Wills were prepared contemporaneously
    with the estate freeze. Mr. Neuberger executed those wills on August 18, 2010. He
    also executed a continuing power of attorney for property (the 2010 POA) at that
    time.  Under the 2010 POA, Edie and Myra were jointly appointed his attorneys but
    Myra was designated the sole attorney with respect to matters concerning
    N&D and Edie was designated the sole attorney with respect to matters
    concerning #179.

[22]

In April 2011, Edie made a demand for the 2010
    POA. She was given a copy of it in October of 2011 and began acting pursuant to
    it.
[4]

D.

A Comparison of the 2004 and 2010 Wills

[23]

At first blush, the
2004 Wills and the 2010
    Wills appear to be very similar. In both sets of wills:

i.

Myra and Edie are named as joint executors and
    trustees;

ii.

the definitions of the primary and secondary
    estates are the same;

iii.

the primary will is designed to deal with Mr.
    Neubergers non-corporate assets which require a grant of probate (such as his
    bank accounts and RIFs);

iv.

the "Primary Estate" is defined as all
    of Mr. Neuberger's property, except for his "Secondary Estate";

v.

the residue of the Primary Estate is to be
    divided into two equal shares, with one share for the benefit of Edie and her
    children and the other share for the benefit of Myra and her children;

vi.

the Secondary Estate consists of the bulk of Mr.
    Neuberger's assets and includes his interests in #179 and N&D. It is
    defined to include his shares in the capital stock of, amounts receivable from,
    and property held in trust by N&D and #179, as well as all of his other
    property that can be dealt with without a certificate of appointment; and

vii.

the secondary will gives voting control of #179
    and N&D to Edie and Myra respectively.

[24]

Edie contends that there is a significant difference
    between the two sets of wills, however. She says that the 2004 Wills have the
    effect of balancing any inequity in the values of N&D and #179 at Mr.
    Neubergers death but the 2010 Wills do not. She contends that this results in
    Myra (and her children) benefitting by some $13 million.

[25]

The difference between the two sets of wills arises
    from the treatment of the capital stock of, and amounts receivable from, #179
    and N&D.

[26]

Under the 2004 Wills, the capital stock of, and
    amounts receivable from, #179 and N&D are included in the residue of the
    Secondary Estate. The residue is then divided into two equal shares, with one
    share going to Edie and her children and the other share going to Myra and her
    children. Thus, if the value of the capital stock of, and amounts receivable
    from, #179 is less than the value of the capital stock of, and amounts
    receivable from, N&D at the time of Mr. Neuberger's death (as Edie alleges is
    the case), the 2004 Wills require that an equalization exercise be performed with
    the result that the residue is divided into equal shares before being
    distributed to each of Edie (and her children) and Myra (and her children).

[27]

However, under the 2010 Wills, the capital stock
    of, and amounts receivable from, #179 and N&D are distributed directly to
    each of the two groups. That is, under the 2010 Wills, Mr. Neuberger left not
    only his shares in #179 and N&D to Edie and Myra respectively, but also the
    amounts owing to him by those companies. Edie contends that at the time of Mr.
    Neubergers death, N&D had approximately $13 million more in its
    shareholder loan account than did #179, which means that he left $13 million more
    in shareholder loan assets to Myra than to her. (The majority of that amount
    was owing to Mr. Neuberger because he lent his income back to N&D.) This
    inequity is not redressed under the 2010 Wills but it would be under the 2004
    Wills.

[28]

Edie contends that this difference between the
    2004 Wills and the 2010 Wills is contrary to Mr. Neuberger's long-stated
    intention to treat his daughters equally upon his death. Moreover, she says,
    the 2010 Wills were executed when Mr. Neuberger did not have the testamentary
    capacity to understand the subtlety or significance of the change that was made
    or to appreciate the difference in value between the N&D and #179 assets,
    which was fundamental to understanding the changed terms.

E.

Administration of the Estate

[29]

The estates terminal tax return and associated
    taxes have been paid. The final tax return and taxes relate to the income Mr.
    Neuberger earned in the final year of his life, including capital gains arising
    on the deemed disposition of his significant assets. In essence, the 2010
    Secondary Will made Myra responsible for payment of the income taxes attributable
    to N&D and Edie responsible for those attributable to #179.  Accordingly, Edie
    arranged for the payment of approximately $11.4 million, which consisted of the
    taxes, penalties and interest associated with #179, and Myra arranged for the
    payment of approximately $15.2 million, which consisted of the taxes, penalties
    and interest associated with N&D.

[30]

In her capacity as estate trustee of the 2010
    Wills, Edie took a number of steps. She:

i.

wrote to Maple Leaf Sports and Entertainment
    asking that it transfer two tickets previously registered in Mr. Neuberger's
    name into her and Myras names;
[5]

ii.

objected to the fact that Mr. Neubergers Polish
    nickname had been engraved on his headstone;
[6]

iii.

sought to obtain medical records from her
    fathers physicians and from OHIP;

iv.

redeemed preference shares of #179; and

v.

initiated legal proceedings and took certain
    steps in them, as set out more fully below.

[31]

Notably, however, few of the key aspects of
    administration of the estate have been undertaken:

i.

no certificate of appointment of estate trustee
    has been obtained under the 2010 Wills  indeed, neither Myra nor Edie has
    applied for one;

ii.

Myra and Edie have never had an estate trustees
    meeting or jointly retained a lawyer to advise on the administration of the
    estate and validity of the 2010 Wills;

iii.

no distributions have been made from the estate;
    and,

iv.

Mr. Neuberger's shares in each of #179 and
    N&D remain in his name, undistributed.

F.

Key Steps in the Legal Proceedings

[32]

April 15, 2013

    Edie brought an application to pass over or remove Myra as co-estate trustee or,
    alternatively, to have both Myra and herself removed and the Bank of Nova
    Scotia Trust Company appointed in their place. Edie brought this application in
    her capacity as a named estate trustee under the 2010 Wills (the original application).

[33]

May 22, 2013

    Myra brought a cross-application to, among other things, compel Edie to prepare
    and pass certain accounts.

[34]

August 21, 2013

    In her capacity as estate trustee, Edie brought a motion for production of Mr.
    Neubergers legal, medical, and financial records.

[35]

November 13, 2013
 Myra brought a motion for an order transferring the shares of N&D and
    #179 in accordance with the terms of the 2010 Wills.

[36]

December 19, 2013
 Edie brought a fresh application in her personal capacity (Edies personal
    application), in which she challenged the validity of the 2010 Wills.

[37]

January 2014

    Adam became an active participant in the litigation. He:

i.

filed a notice of appearance in Edies personal
    application (Jan. 20);

ii.

filed a notice of objection to the issuance of a
    certificate of appointment of estate trustee with a will to either Myra or Edie
    (Jan. 21); and

iii.

brought a motion for directions, within Edies
    personal application, in which he sought to be joined as an applicant and also challenged
    the validity of the 2010 Wills (Jan. 29).

[38]

February 7, 2014
 the York Parties brought the motion which led to these appeals. In it, they
    asked the court to dismiss the Wills Challenges on the basis that those
    challenges were barred by the equitable doctrines of estoppel by representation
    and estoppel by convention.

G.

The Wills
    Challenges

[39]

In
    her wills challenge, Edie voiced concerns about the validity of the 2010 Wills
    based on her fathers alleged incapacity and susceptibility to undue influence
    at the time that he executed them. She also alleged suspicious circumstances.

1.

Incapacity

[40]

Edie referred to evidence showing that her
    fathers mental state was of sufficient concern among his family and business advisors
    by early 2011 that they arranged for him to be assessed by a number of
    different doctors.

[41]

For the purposes of these appeals, it is
    unnecessary to review the medical evidence. It is sufficient to refer to the
    report of Dr. Kenneth Shulman, whom Edie retained after her fathers death. Dr.
    Shulman is the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health
    Sciences Centre, and a leading authority on the assessment of testamentary
    capacity.

[42]

Dr. Shulman's report was a retrospective assessment
    of Mr. Neuberger's capacity, based on a review of Mr. Neubergers medical
    records and the assessments that had been conducted during Mr. Neubergers life.
    Based on the available medical records, Dr. Shulman said that he was able to
    extrapolate back to August 2010, when the wills were executed. He stated:

I conclude from a clinical perspective that in
    August 2010, Mr. Neuberger would not have been capable of dealing with any
    degree of complexity with respect to business or property decisions related to his
    Wills ... As documented by Dr. Gilley, he was not capable of understanding the
    relevant facts with respect to his assets and he was certainly not capable of
    appreciating the reasonably foreseeable consequences of taking or not taking
    specific business decisions ... It follows therefore, that from a clinical
    perspective, Mr. Neuberger would not have been capable of making decisions
    about his property, finances, or making significant changes in his Wills in
    2010.

[43]

The respondents did not cross-examine Dr.
    Shulman, put forward their own expert or adduce any medical evidence. However,
    they point to evidence showing that Edie had concerns about her fathers
    capacity since at least September 2010 but she did not raise allegations of
    incapacity until she brought her personal application on December 19, 2013. They
    note also that as of October 2011, Edie began relying on her authority under
    the 2010 POA, which was executed at the same time as the 2010 Wills. Thus, they
    say, Edie was prepared to accept that her father had capacity to act when doing
    so advanced Edies own personal interests.

2.

Suspicious Circumstances

[44]

Edie further maintains that the 2010 Wills were
    executed in suspicious circumstances and at a time when her father was
    susceptible to undue influence.

[45]

From 2004 to 2011, Mssrs. Neuberger, Sporer,
    York and Lax managed both N&D and #179. Edie alleges that particularly in
    2010 and 2011, Mr. Neuberger was incapacitated and Mssrs. Sporer, York and Lax
    managed the business in a way that preferred Myra (N&D) over Edie (#179).

[46]

She gives an example of Mr. Neubergers alleged susceptibility,
    which took place about five months after Mr. Neuburger executed the 2010 Wills.
    At that time, a fundraising representative from Bar Ilan University visited Mr.
    Neuberger at his home and extracted a promise that Mr. Neuberger would make a
    donation of $20 million.

[47]

Mr. Neubergers caregiver called Myra to tell
    her about the promised donation and said that even though Mr. Neuberger told
    her he did not want to give the money and tried to resist the fundraisers
    requests, he had given in and agreed to make the donation.

[48]

Myra contacted Mr. Neubergers lawyer and told
    him that the fundraiser was bothering her father and pushing him around. The lawyer
    sent the fundraiser a letter telling him to leave Mr. Neuberger alone.

[49]

Adam shares Edies concerns about Mr.
    Neubergers alleged lack of capacity when the 2010 Wills were executed and adds
    the following in support of his concerns about suspicious circumstances. He
    says that those who stand to benefit from the 2010 Wills were involved in Mr.
    Neubergers execution of them. He notes that Mr. Neuberger was not a
    detail-oriented person and that he relied heavily on his closest business
    advisers  particularly Myras husband, Joel York  to explain the effect and
    importance of transactions.

[50]

Adam also draws attention to the fact that there
    was no evidence that anyone had explained the effect of the 2010 Wills to Mr.
    Neuberger. The accountant who advised on the estate freeze says that he never
    met with, or received instructions from, Mr. Neuberger personally. And, Adam
    says, the respondents have resisted disclosure of Mr. Neubergers solicitors
    files. Those records would shed light on whether Mr. Neubergers lawyers ever
    met with, or received instructions from, Mr. Neuberger personally with respect
    to the 2010 Wills or, if not, where their instructions came from.

III.

THE DECISION BELOW

[51]

After
    setting out the salient facts and the parties positions, the motion judge began
    her analysis by finding that Adam was a straw man who came forward without
    knowledge of the estate or the 2010 Wills, to support his mothers position in
    the litigation.

[52]

The
    motion judge said that all of the adult grandchildren have a vested interest in
    the trusts in the 2010 Wills, and that a reading of those wills show that the children
[7]
in each group benefit equally.

[53]

The
    motion judge viewed Edies wills challenge as a questioning of all of Mr.
    Neubergers financial decisions and transactions during the period in which she
    had little control over Mr. Neubergers actions. She also stated that if Edies
    personal application were to succeed, the estate freeze would have to be
    unwound.
[8]

[54]

The
    motion judge found that Edie carried on administering the assets in #179 after
    Mr. Neubergers death, as an estate trustee. She further found that Myra had
    relied on the 2010 Wills in paying the income taxes relating to her interest in
    N&D.

[55]

The
    motion judge then considered the doctrines of estoppel by representation and
    estoppel by convention. She began by setting out the legal tests for both
    doctrines and concluded that Edie was estopped from challenging the validity of
    the 2010 Wills. She reached this conclusion based on:

i.

Edies delay in bringing her challenge and the absence of an explanation
    for that delay, despite having had doubts as to Mr. Neubergers capacity even
    prior to 2011, when she began acting under the 2010 POA;

ii.

the actions which Edie had taken as estate trustee and her having held herself
    out as an estate trustee to various professionals; and,

iii.

the prejudice that would ensue from having to unwind the estate freeze
    and that the respondents would suffer as a result of having taken steps taken based
    on the 2010 Wills.

[56]

The
    motion judge found that Adam should not be allowed to challenge the 2010 Wills
    because:

i.

he had no independent knowledge of the estate, its assets, previous
    wills and pertinent information about Mr. Neubergers estate planning, all of
    his information on these matters having come from Edie;

ii.

he did not have a close relationship with his grandfather; and

iii.

he had no real explanation for why he would challenge the 2010 Wills and
    for why he left it so late in time to come forward.

[57]

The
    motion judge found that Adam had made no representations but stated that was
    not sufficient to allow his wills challenge to go forward at this late date.

[58]

The
    motion judge described rule 75.01 as being discretionary in nature, and stated
    that delay in bringing a claim pursuant to it is a strong reason for dismissing
    the claim. She also said that neither Edie nor Adam had established an
    arguable case.

[59]

The
    motion judge concluded by finding that both estoppel by representation and
    estoppel by convention had been made out. Consequently, she granted the respondents
    motion and dismissed the Wills Challenges.

IV.

THE ISSUES

[60]

Edie
    raises three issues on appeal. She submits that the motion judge erred in:

1.

analyzing her right to challenge the 2010 Wills through the post-probate
    regime of rules 75.04 and 75.05, rather than rule 75.01;

2.

finding that her wills challenge was barred by estoppel; and

3.

failing to take into account the relevant policy considerations.

[61]

Adam
    submits that the motion judge erred by failing to recognize his automatic right
    to seek proof in solemn form of the 2010 Wills. He echoes Edies second ground
    of appeal, namely, that the motion judge erred in barring his wills challenge
    based on the equitable doctrines of estoppel by representation and estoppel by
    convention. As well, Adam contends that the motion judge erred in:

4.

barring him from seeking proof of the 2010 Wills in solemn form because
    he is a straw man for his mother; and

5.

making findings of fact in a conclusory fashion, without weighing the
    evidence and making any necessary credibility findings.

[62]

The
    respondents see the issues in a very different way. Their position is this.  They
    brought a motion to have the Wills Challenges dismissed based on the equitable
    doctrines of estoppel by representation and estoppel by convention. They were
    successful, with the result that the motion judge made an
in personam
order estopping Edie and Adam from continuing those challenges. Consequently,
    the only issue on appeal is whether the motion judge erred in estopping the
    appellants from contesting the validity of the 2010 Wills.

[63]

While
    I agree with the respondents that estoppel was central to the motion judges
    determination to dismiss the Wills Challenges, in my view, all of the issues that
    have been raised warrant consideration.

[64]

Before
    turning to those issues, it is necessary to consider the legal framework
    governing probate. In the course of that consideration, I will discuss the
    operation of rules 75.01 and 75.06, which naturally leads to a consideration of
    Adams contention that he has an automatic right to require that the 2010 Wills
    be proved in solemn form. Thus, after setting out the legal framework, I
    address that contention as a preliminary issue.

V.

THE LEGAL FRAMEWORK GOVERNING PROBATE

[65]

In
    this section, I will discuss: (a) what probate means; (b) the nature of the
    courts role and jurisdiction in probate; (c) rules 74 and 75 of the
Rules
    of Civil Procedure
; and (d) proof in solemn form.

A.
Probate

[66]

Probate
    is the court procedure by which a will is proved to be valid or invalid:
Blacks
    Law Dictionary
, 8
th
ed. (St. Paul: Thomson West, 2004). The term
    is also commonly used to refer to the court order certifying that particular writings
    constitute a deceaseds will and that those persons named as estate trustees
    have the authority to act in relation to the testators estate: R. Hull &
    I. Hull,
Macdonell, Sheard and Hull on Probate Practice,
4th ed.
    (Toronto: Carswell, 1996), at p. 185.

B.
The Nature of the Courts Role
    and Jurisdiction in Probate

[67]

The
    particular court with jurisdiction to address probate matters has changed over
    time in Ontario. In
Otis v. Otis
(2004), 7 E.T.R. (3d) 221 (Ont. S.C.J.),
    at para. 22, Cullity J. opined that despite the transfer of probate
    jurisdiction from the former surrogate courts to the Superior Court of Justice and
    the replacement of the
Surrogate Court Rules
with rules 74 and 75 of the
Rules of Civil

Procedure
, the nature of the courts jurisdiction has
    not changed in material respects. I agree.

[68]

I
    agree also with Cullity J.s description of that jurisdiction, set out in
    paras. 23-26 of
Otis
. Cullity J. explains that the courts jurisdiction in
    probate is inquisitorial. That is, the courts role is not simply to adjudicate
    upon a dispute between parties. It is the courts function and obligation to
    ascertain and pronounce what documents constitute the testators last will and
    are entitled to be admitted to probate. Further, the granting of probate does
    not bind only the parties to the proceeding. Unless and until probate is set
    aside, it operates
in rem
[9]
and can affect the rights of other persons.  The court also has a special responsibility
    to the testator,
[10]
who cannot be present to give voice to his or her true intentions.

C.
Rules 74 and 75 of the Rules of
    Civil Procedure

[69]

Since
    January 1, 1995,
[11]
applications for probate have been governed by rules 74 and 75 of the
Rules
    of Civil Procedure.
However, under those rules, the nomenclature has
    changed.  An application for a certificate of appointment of estate trustee
    replaces the former application for probate.

[70]

Rule
    74 governs non-contentious estate proceedings whereas rule 75 governs estate
    proceedings that are contentious.  Because the proceedings in this estate
    matter are contentious, rule 75 is in play.

[71]

Rule
    75.01 empowers an estate trustee or any person appearing to have a financial
    interest in an estate (an Interested Person) to make an application under rule
    75.06 to have a testamentary instrument that is being put forward as the last
    will of the deceased proved in such manner as the court directs.

[72]

There
    are two points to observe about rule 75.01. First, it provides that an
    application to have the testamentary instrument proved is to be made under rule
    75.06. Second, the quoted words  proved in such manner as the court directs
     would include proof in solemn form, which is discussed below.

[73]

Rules
    75.04 and 75.05 apply when probate (that is, a certificate of appointment of
    the estate trustee) has been granted and the court is considering whether to
    revoke or return the certificate. As no certificate of appointment of estate
    trustee has been issued in this matter, neither rule 75.04 nor 75.05 applies on
    this appeal.

[74]

Rule
    75.06(1) gives an Interested Person the right to apply for directions or move
    for directions in another proceeding under rule 75.  So, for example, Adam made
    his motion for directions (in which he challenged the validity of the 2010
    Wills) pursuant to rule 75.06(1).  Adam is an Interested Person  that is, he
    is a person who appears to have a financial interest in Mr. Neubergers estate.
    Edie made her personal application under rule 75 prior to Adam making his
    motion.  Therefore, pursuant to rule 75.06(1), Adam could bring his motion for
    directions within Edies personal application, which was another proceeding
    under rule 75.

[75]

Rule
    75.06(3) gives the court important powers in respect of an application or
    motion brought under rule 75. Among other things, the court may direct:

-

the
    issues to be decided;

-

who
    are parties, who is plaintiff and defendant and who is submitting rights to the
    court;

-

who
    shall be served with the order for directions; and

-

procedures
    for bringing the matter before the court in a summary fashion.

[76]

As
    I explain below, rule 75.06(3) plays an important role in contentious estate
    proceedings.

D. Proof in Solemn Form

[77]

Proving
    a will in solemn form requires the propounder of a will to prove, in open court
    upon notice to all parties having a financial interest in the estate, that the
    will was duly executed, the testator had testamentary capacity and that the
    testator had knowledge and approval of the contents of the will: R. Hull &
    I. Hull,
Macdonell, Sheard and Hull on Probate Practice,
4th ed.,
    (Toronto: Carswell, 1996), at p. 315. The court will also address allegations of
    undue influence and suspicious circumstances. In this regard, reference must be
    had to the Supreme Court decision in
Vout v. Hay
, [1996] 2 S.C.R. 876.

[78]

Vout
    v. Hay
established that the person propounding the will has the legal
    burden of proof with respect to due execution, knowledge and approval, and
    testamentary capacity. Upon proof that the will was duly executed with the
    requisite formalities, the propounder is aided by a rebuttable presumption,
    which casts an evidential burden on those challenging the will. That evidential
    burden can be satisfied by those challenging the will introducing evidence of
    suspicious circumstances  that is, evidence which, if accepted, would tend
    to negative knowledge and approval or testamentary capacity. If such evidence
    is adduced, the legal burden reverts to the propounder. By contrast, if undue
    influence is alleged, the burden is on those attacking the will: pp. 889-890.

[79]

I
    pause to note that the words proof in solemn form do not appear in rule 75. In
    my view, the power of the court to order formal proof of a testamentary
    instrument under rule 75 encompasses the right to order proof in solemn form
    but is not synonymous with proof in solemn form.  This point is considered more
    fully in my analysis of the preliminary issue.

VI.

ANALYSIS

PRELIMINARY ISSUE:

IS THERE AN
    AUTOMATIC RIGHT TO PROOF IN SOLEMN FORM PRE-PROBATE?

[80]

Adam
    contends that prior to probate being granted, an Interested Person is entitled,
    as of right, to have the will proved in solemn form. He says that rule 75.01
    confers a right on any Interested Person to require proof in solemn form and
    that the court has no discretion to approve or disapprove such a request. He
    further submits that the courts only discretion comes from rule 75.06(3),
    which empowers the court to limit the issues to be decided and direct a summary
    hearing procedure, but does not empower the court to refuse a request for proof
    in solemn form.

[81]

I
    do not agree.

[82]

I
    accept that, as a general principle, before probate issues an Interested Person
    has the right to request formal proof of the testamentary instrument, pursuant
    to rules 75.01 and 75.06. But I do not accept that this general principle means
    that the Interested Person is entitled, as of right, to require that the
    testamentary instrument be proved in solemn form. I offer two reasons for this
    view.

[83]

The
    first reason flows from the words of rules 75.01 and 75.06. For ease of
    reference, rule 75.01 is set out again now:

75.01
An estate trustee or any person appearing to have a financial
    interest in an estate
may make an application under rule 75.06
to
    have a testamentary instrument that is being put forward as the last will of
    the deceased
proved in such manner as the court directs
.

[Emphasis added.]

[84]

On
    a plain reading of rule 75.01, it does not give an Interested Person the right
    to compel proof in solemn form. Rather, rule 75.01 provides that an Interested
    Person may make an application: (1) under rule 75.06; and (2) to have a
    testamentary instrument proved in such manner as the court directs.  The
    first point shows that the Interested Persons application under rule 75.01
    must be considered in conjunction with rule 75.06 because the application must
    be brought under rule 75.06.  The second point makes it clear that it is the
    court who is to direct the manner in which the testamentary instrument is to be
    proved.  Therefore, the Interested Person cannot require proof in solemn form
    he or she can request proof in solemn form but cannot require it.

[85]

As
    indicated, pursuant to rule 75.01, an Interested Person may make an application
    under rule 75.06.  For the purposes of these appeals, rule 75.06(3) is the
    critical provision.
[12]
It reads as follows:

On an application
    or motion for directions, the court
may

direct,

(a)

the issues to be decided;

(b)

who are parties, who is plaintiff and defendant and who is
    submitting rights to the court;

(c)

who shall be served with the order for directions, and the method
    and times of service;

(d)

procedures for bringing the matter before the court in a summary
    fashion, where appropriate;

(e)

that the plaintiff file and serve a statement of claim (Form 75.7);

(f)

that an estate trustee be appointed during litigation, and file such
    security as the court directs;

(g)

such other procedures as are just. [Emphasis added.]
[13]

[86]

Rule
    75.06(3) is permissive. It says that the court may direct certain things. It
    does not say that the court must or shall grant the application or motion.

[87]

Thus,
    in my view, when rules 75.01 and 75.06 are read together  as rule 75.01
    indicates must be done  the court has a discretion whether to order that a testamentary
    instrument be proved, as well as a discretion over the manner in which the
    instrument is proved.

[88]

My
    second reason for rejecting the notion that, pre-probate, an Interested Person
    has a right to require proof in solemn form is this. In my view, an Interested
    Person must meet some minimal evidentiary threshold before a court will accede
    to a request that a testamentary instrument be proved. In the absence of some
    minimal evidentiary threshold, estates would necessarily be exposed to needless
    expense and litigation. In the case of small estates, this could conceivably
    deplete the estate. Furthermore, it would be unfair to require an estate
    trustee to defend a testamentary instrument simply because a disgruntled
    relative or other potential beneficiary makes a request for proof in solemn
    form.

The correct approach to rule 75.06

[89]

Based
    on the above analysis, in my view, an applicant or moving party under rule
    75.06 must adduce, or point to, some evidence which, if accepted, would call
    into question the validity of the testamentary instrument that is being
    propounded. If the applicant or moving party fails in that regard or if the
    propounder of the testamentary instrument successfully answers the challenge,
    then the application or motion should be dismissed. If, on the other hand, the
    applicant or moving party adduces or points to evidence that calls into
    question the validity of the testamentary instrument which the propounder does
    not successfully answer, the court would generally order that the testamentary
    instrument be proved. In determining the manner in which the instrument be
    proved, the court would have recourse to the powers under rule 75.06(3).

[90]

This
    approach gives meaning to both rule 75.01 and rule 75.06(3). It also meets the
    concern about potentially needless depletion of estates.

[91]

Further,
    this approach is consistent with the jurisprudence on rule 75.    To date, the
    courts have not approached challenges to the validity of a will on the basis
    that an Interested Person has an absolute right to proof in solemn form.  Instead,
    when faced with a request for proof in solemn form prior to the issuance of a
    certificate of appointment of estate trustee, they have considered the
    evidentiary basis underlying the request.  Two examples will demonstrate this.

[92]

In
Smith Estate v. Rotstein
, 2010 ONSC 2117, 56 E.T.R. (3d) 216, the
    daughter of a testator objected to probate, alleging lack of knowledge and/or
    approval by the testator and undue influence.  The wills propounders brought a
    summary judgment motion to dismiss the daughters notice of objection.  Justice
    D.M. Brown granted the motion, finding that there was no evidentiary foundation
    for the daughters objection.  This court affirmed that decision, observing
    that there was not a scintilla of evidence that the [challenged will and
    codicils] are invalid: 2011 ONCA 491, 106 O.R. (3d) 161, at para. 36, leave to
    appeal refused [2011] S.C.C.A. No. 441.

[93]

A
    similar result occurred in
Chappus Estate (Re)
, 2009 ONCA 279, 46 E.T.R.
    (3d) 186.  In
Chappus
, the appellant challenged the validity of the
    testators wills on the basis of undue influence. The foundation of her
    challenge was the nature of the relationship between the testator and the
    respondent propounders of the wills  the testators lawyer, doctor and
    accountant  who were also beneficiaries and the estate trustees under the wills.
    A trial was ordered.  Before the trial took place, the propounders brought a
    motion for summary judgment to dismiss the challenge. On the motion, the
    challenger led no evidence in support of her assertion of undue influence, simply
    arguing that the matter could not be decided summarily.

[94]

The
    motion judge found that there was no issue for trial and granted summary
    judgment. The wills challenger appealed.

[95]

At
    para. 7 of
Chappus,
Sharpe J.A., writing for the court, observed that the
    rules contemplate the possibility of summary disposition in contentious estate
    matters. He saw no error on the part of the motion judge in concluding that the
    wills challenger had raised no triable issue. The wills propounders had adduced
    a substantial record of evidence showing that the wills had been properly
    executed, and that the testator was of sound mind with a full understanding of
    the contents of the wills and how her property was to be disposed of on her
    death. The wills challenger led no evidence to dispute those facts and there
    was no evidence of suspicious circumstances:
Chappus
, at paras. 8-10.

[96]

I
    accept that some first instance decisions have indicated that next-of-kin are
    entitled, as of right, to have the will proved in solemn form.  See, for
    example,
Stefanik v. Stefanik
, [2000] O.J. No. 3279 (S.C.J.), at para. 4.
    However, in my view, those statements are reflective of a presumption that
    applies in situations where no certificate of appointment of estate trustee has
    been issued, rather than a hard and fast rule.  Indeed, although at para. 4 of
Stefanik
the judge describes the entitlement to be as of right, at para. 5, he says
    that such orders have not been difficult to obtain, are virtually
    automatic, and that the requirements to obtain such orders have not been
    exacting.  These statements indicate that the right is not absolute.

Conclusion on the Preliminary Issue

[97]

It
    is for these reasons that, in my view, the appellants are not entitled, as of
    right, to proof in solemn form of the 2010 Wills, despite the fact that probate
    has not yet issued in respect of those wills.

[98]

Whether
    the appellants are entitled to formal proof of the 2010 Wills has yet to be
    decided. If and when Edie proceeds with her personal application or Adam
    proceeds with his motion for directions, it will be for the court hearing the
    matter to decide whether to order that the 2010 Wills be proved and, if so, in
    accordance with rule 75.06(3), to direct the manner in which they are to be
    proved.

ISSUE #1     DID THE MOTION JUDGE ERR IN HER
    ANALYSIS OF EDIES RIGHT TO CHALLENGE THE 2010 WILLS?

[99]

As
    I have explained, rules 75.04 and 75.05 apply to wills challenges where probate
    (a certificate of appointment) has already issued and the court must decide
    whether to revoke or return the certificate. In this proceeding, probate has
    never been granted. Edie contends that the motion judge erred by conflating the
    legal tests developed in relation to rules 75.04 and 75.05 with that to be
    applied under rule 75.01 where probate has never been granted. Thus, Edie submits,
    the motion judge wrongly applied the arguable case and delay tests when
    analyzing her right to challenge the 2010 Wills under rule 75.01.

[100]

The respondents say
    that this issue is a red herring. They submit that the motion judges sole
    task was to decide whether the doctrine of estoppel applied to preclude the
    Wills Challenges from proceeding. While they acknowledge the existence of the Wills
    Challenges, they say that the appellants never applied or moved to have the
    2010 Wills proved in solemn form and they cannot use these appeals to
    reconstitute the proceedings.

[101]

I accept the
    respondents position on this matter.  The motion did not join issue with the
    merits of the Wills Challenges and there was no rule 75.06 application or
    motion before the motion judge.  The only issue before the motion judge was
    whether the doctrines of estoppel by representation and/or convention barred
    the appellants from continuing with the Wills Challenges.  While there is some
    discussion of the merits of the Wills Challenges in the motion judges reasons,
    it is not clear how that relates to the motion before her.  I make the same comment
    in respect of her discussion of the jurisprudence relating to rules 75.04 and
    75.05.

[102]

Accordingly, the
    first issue does not arise on these appeals and nothing more need be said about
    it.

ISSUE #2     DID THE MOTION JUDGE ERR IN BARRING
    THE WILLS CHALLENGES BASED ON ESTOPPEL?

[103]

In my view, the equitable
    doctrines of estoppel by representation and estoppel by convention do not lie
    to bar a challenge to the validity of a will and the motion judge erred in so
    doing. This view rests on two considerations. First, as I explain below, the
    motion judge erred in finding a jurisprudential basis for the application of the
    doctrine of estoppel to matters involving the validity of a will. Second, as I
    explain when addressing the following issue, the use of estoppel in such
    matters is antithetical to the policy considerations which govern probate.

[104]

The motion judge
    relied on three cases as authority for the power to invoke estoppel to bar the
    Wills Challenges:
Canadian Superior Oil Ltd. v. Paddon-Hughes Development
    Co.,
[1970] S.C.R. 932;
Ryan v. Moore
, 2005 SCC 38, [2005] 2 S.C.R.
    53; and,
Leibel v. Leibel
, 2014 ONSC 4516, 2 E.T.R. (4th) 268.

[105]

With respect, neither
Canadian Superior Oil
nor
Ryan
is relevant to the question of
    whether estoppel by representation and/or estoppel by convention apply to a
    challenge to the validity of a will.

[106]

In
Canadian
    Superior Oil
, the appellants sought a declaration that an oil and gas lease
    was valid and subsisting, despite the fact that the lease had terminated when
    drilling ceased. The appellants argued that by virtue of the respondents
    conduct, he was estopped from taking the position that the lease had terminated.

[107]

The Supreme
    Court dismissed the appeal. It held that when the lease terminated, the legal
    relationship between the parties ended and the lease could thereafter only be
    revived by agreement for consideration. It said that the doctrine of promissory
    estoppel was premised on a legal relationship existing between the parties. As
    that relationship had ended before any of the alleged representations, it did
    not apply.

[108]

Thus, it can be
    seen,
Canadian Superior Oil
does not offer any authority or support for
    the notion that the equitable doctrines of estoppel by representation and/or
    convention apply to probate matters.
Canadian Superior Oil
deals with
    promissory estoppel  not estoppel by convention or representation. Moreover, it
    is decided within the context of a lease agreement. A lease is a private matter
    between two individuals and, therefore, is fundamentally different than is the
    question of the validity of a will.

[109]

Ryan
arose from a motor vehicle accident involving the plaintiff, defendant and
    another person. The defendant died of causes unrelated to the accident. Letters
    of administration were granted to the defendants administrator. Thereafter,
    the plaintiff  not knowing of the defendants death  issued a statement of
    claim. The defendants insurer applied to have the action dismissed because it
    was outside the limitation period.

[110]

The trial judge
    found that the action was not statute-barred. On appeal, that decision was
    reversed. A further appeal to the Supreme Court of Canada was allowed in part,
    but the claim was struck because it had not been brought within the time period
    prescribed by the
Survival of Actions Act
, R.S.N.L. 1990, c. S-32.

[111]

Ryan
does
    discuss estoppel by convention and representation. However, the issue in
Ryan
was whether those doctrines were applicable to prevent a party from raising
    a limitation period defence in a personal injury action.  There is nothing in
Ryan
to suggest that the doctrines of estoppel by convention and representation
    can be extended to apply to circumstances such as those in the present case
    where the matter is not a private dispute between individuals but, rather, a
    challenge to the validity of a will.

[112]

Leibel
is
    the only decision of which I am aware in which estoppel has been applied when
    determining whether a challenge to the validity of a will should be permitted to
    proceed. It is an earlier decision of the same motion judge. That decision was
    not appealed.

[113]

In
Leibel,
the party seeking to challenge the validity of wills waited more than two years
    from the date of death to bring his application. The motion judge found that
    there were no discoverability issues and, thus, that the claim was
    statute-barred under the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B.
[14]

[114]

In case she was
    in error in finding that the application was statute-barred, the motion judge went
    on to consider whether the doctrines of estoppel by representation and
    convention applied. She referred to the same cases as she did in the present
    case (
Canadian Superior Oil
and
Ryan
) as authority for her use of
    those doctrines.  However, as I have explained, neither
Canadian Superior
    Oil
nor
Ryan
are authority for the proposition that estoppel applies
    to the question of whether an interested person should be permitted to proceed
    with a challenge to the validity of a will.

[115]

Indeed, there is
    nothing in the jurisprudence to support the extension of the equitable
    doctrines of estoppel by convention or representation to matters involving the
    validity of a will.  Accordingly, it was an error to have dismissed the Wills
    Challenges on the basis of those doctrines.

[116]

In light of this
    determination, it is unnecessary to consider whether the motion judge erred in
    her application of those doctrines.

ISSUE #3     DID THE MOTION JUDGE ERR BY FAILING
    TO TAKE INTO ACCOUNT THE RELEVANT POLICY CONSIDERATIONS?

[117]

The policy
    considerations which underlie the law of probate also augur against permitting
    estoppel to be used to bar challenges to the validity of wills.

[118]

In private law,
    estoppel is animated by the goal of creating transactional certainty between private
    parties in civil disputes.
[15]
A will, however, is more than a private document. As explained above, a dispute
    about a wills validity engages interests that go beyond those of the parties
    to the dispute and extend to the testator and the public. Once a testamentary
    instrument is probated, it speaks to society at large. Probate is an
in rem
pronouncement
    that the instrument represents the testators true testamentary intentions and
    that the estate trustee has lawful authority to administer the estate. Because
    of this, the court has a responsibility to ensure that only wills that meet the
    hallmarks of validity are probated. It owes that duty to the testators, whose
    deaths preclude them from protecting their own interests, to those with a
    legitimate interest in the estate, and to the public at large.  If the doctrine
    of estoppel were available to bar a party from having the validity of a will
    determined, the courts ability to discharge that responsibility would be in
    jeopardy.

[119]

Edie raises a
    further policy consideration, related to the matter of delay. She brought her
    wills challenge less than two years after her fathers death.  The motion judge
    found that to be an undue delay. That finding weighed heavily in the motion
    judges decision to bar Edie from proceeding with her wills challenge.  Edie submits
    that allowing this aspect of the decision below to stand could adversely affect
    the administration of estates.

[120]

I accept this
    submission.

[121]

The motion
    judges reasoning would place estate trustees with doubts as to the validity of
    a will in an untenable position. They would either have to bring a premature
    will challenge (i.e. one that was not fully informed because the trustee had
    not obtained the necessary information to determine whether such a challenge
    should be undertaken) or take no steps in the administration of the estate while
    investigating the testators capacity, for fear of being deemed unduly dilatory
    or as having affirmed the validity of the will. As Haley J. remarked in
Oestreich
    v. Brunnhuber
(2001), 38 E.T.R. (2d) 82 (Ont. S.C.J.), at para. 26, mere
    delay in questioning the validity of a will is not enough to prevent the court
    from requiring proof in solemn form because, in many instances, a later will is
    found or grounds are later discovered which bring into question the wills
    validity.

[122]

Finally, in
    light of rule 75, there is no need to import the doctrine of estoppel into this
    area. As I explain above, rule 75 provides the court with sufficient discretion
    that it can screen out meritless claims for formal proof of testamentary
    instruments and, for those with merit, control the manner in which the
    instrument is proved.

ISSUE #4     DID THE MOTION JUDGE ERR IN BARRING
    ADAM FROM PURSUING HIS WILLS CHALLENGE BECAUSE HE IS A STRAW MAN?

[123]

In my view, the
    motion judge erred in finding that Adam was a straw man in this litigation
    that is, that Adam is simply Edies agent and only took a role in this
    litigation to support his mother.

[124]

It is not clear
    to me on what basis the motion judge made the finding that Adam was a straw man.
    Adams evidence was that he made an independent decision to commence his wills
    challenge and his parents tried to talk him out of it. Edies evidence was that
    she did not wish any of her children to be involved in this acrimonious
    litigation. Neither Adams nor Edies evidence on this matter was disturbed on
    cross-examination. While the respondents alleged that Edie put Adam up to
    participating in the litigation in case she was found to be estopped from
    proceeding with her wills challenge, there was no evidence to support this
    allegation.
[16]
If the motion judge rejected Adams evidence  which would necessarily entail
    credibility determinations  it was incumbent on her to give some explanation
    for so doing:
Trotter Estate
, 2014 ONCA 841, 122 O.R. (3d) 625 (C.A.),
    at paras. 5 and 54-55.

[125]

In any event, it
    was an error in law to bar Adam from pursuing his wills challenge on the basis
    that he was a straw man.  At the time that Adam began his wills challenge,
    probate had not been granted. Adam is a person who appears to have a financial
    interest in his grandfathers estate. Pursuant to rule 75.06, Adam had the right
    to bring his motion within Edies personal application and ask that the 2010
    Wills be proved in solemn form. He did not have to have direct or first-hand
    knowledge of the matters raised by Edie in her wills challenge in order to
    exercise that right. Nor does the fact that he is Edies son disentitle him
    from pursuing that right.

ISSUE #5     DID THE MOTION JUDGE ERR IN HER
    FACTUAL FINDINGS IN RESPECT OF ADAM?

[126]

Adam submits
    that the motion judges findings of fact in relation to his claim were made in a
    conclusory fashion, without explaining how she weighed conflicting evidence and
    resolved credibility disputes.

[127]

In my view, this
    complaint is well-founded, as the following two examples demonstrate.

[128]

First, the
    motion judge found that Adam did not have a close relationship with his
    grandfather. Adams evidence was that he had a close relationship with his
    grandfather. As there was no contrary evidence, it is not clear to me on what
    basis the motion judge made this finding. In any event, she could not have made
    this finding unless she either misapprehended the evidence or rejected Adams
    evidence on the point. As I have explained, if the motion judge rejected Adams
    evidence on this matter, it was incumbent on her to provide some explanation
    for so doing.

[129]

Second, the
    motion judge said that Adam had not explained why he brought his wills challenge.
    This appears to be a misapprehension of the evidence because Adam did give an
    explanation. Adams evidence was that until mid-January 2014, he was content to
    have his mother pursue the validity of the 2010 Wills, without his involvement.
    After all, she was an estate trustee and, prior to Mr. Neubergers death, had
    been directly involved in his business for a number of years. She had also been
    involved in the dispute over Mr. Neubergers capacity to manage property, in
    the later years of his life.
[17]
Moreover, despite being a beneficiary, Adam had little information about the
    estate. He had not been given a copy of the 2010 Wills, a statement of assets
    and liabilities of the estate, or an accounting.

[130]

Things changed
    when he learned, in mid-January 2014, that the York Parties intended to bring a
    motion to strike Edies wills challenge based on her actions. He felt that his
    interests might not be protected unless he actively participated in the wills
    challenges and, within a week, he had taken steps to independently protect his
    position and seek proof in solemn form of the 2010 Wills.

[131]

Adam also said that
    he was motivated by a concern that his grandfather was incompetent at the time
    he made the 2010 Wills and, therefore, that those wills might not represent his
    grandfathers true wishes.

[132]

In light of this
    evidence, it is not clear to me how the motion judge could conclude that Adam
    had given no explanation for why he began his wills challenge.

VII.

DISPOSITION

[133]

Accordingly, I
    would allow the appeals and set aside the Order, with costs of the appeals and
    motion to the appellants. If the parties are unable to agree on those costs, I
    would allow them to make written submissions on the same, not to exceed four
    typewritten pages, no later than 10 days following the release of these
    reasons.

Released: March 8, 2016 (E.E.G.)

Eileen E. Gillese J.A.

I agree. K. van Rensburg
    J.A.

I agree. B.W. Miller J.A.

APPENDIX A

Rules
    75.01, 75.03(1), 75.04, 75.05(1), 75.06(1),(3)

FORMAL PROOF OF TESTAMENTARY INSTRUMENT

75.01
An estate trustee
    or any person appearing to have a financial interest in an estate may make an
    application under rule 75.06 to have a testamentary instrument that is being
    put forward as the last will of the deceased proved in such manner as the court
    directs.

OBJECTION TO ISSUING CERTIFICATE OF
    APPOINTMENT

75.03

(1) At any time
    before a certificate of appointment of estate trustee has been issued, any
    person who appears to have a financial interest in the estate may give notice
    of an objection by filing with the registrar or the Estate Registrar for
    Ontario a notice of objection (Form 75.1), signed by the person or the persons
    lawyer, stating the nature of the interest and of the objection.

REVOCATION OF CERTIFICATE OF APPOINTMENT

75.04
On the application
    of any person appearing to have a financial interest in an estate, the court
    may revoke the certificate of appointment of the estate trustee where the court
    is satisfied that,

(a)

the certificate was issued in error or as a result of a fraud on the
    court;

(b)

the appointment is no longer effective; or

(c)

the certificate should be revoked for any other reason.

RETURN OF CERTIFICATE

Motion for Return of Certificate

75.05

(1) The court may,
    on motion, order that a certificate of appointment be returned to the court
    where,

(a)

the moving party seeks a determination of the validity of the
    testamentary instrument for which the certificate was issued or of the
    entitlement of the estate trustee to the certificate; or

(b)

an application has been made under rule 75.04.

APPLICATION OR MOTION FOR DIRECTIONS

75.06

(1) Any person who
    appears to have a financial interest in an estate may apply for directions, or
    move for directions in another proceeding under this rule, as to the procedure
    for bringing any matter before the court.

(2) An application for directions
    (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons
    appearing to have a financial interest in the estate, or as the court directs,
    at least 10 days before the hearing of the application or motion.

...

(3) On an
    application or motion for directions, the court may direct,

(a) the issues to be decided;

(b) who are
    parties, who is plaintiff and defendant and who is submitting  rights to the
    court;

(c)

who shall be served with the order for directions, and the method
    and times of service;

(d)

procedures for bringing the matter before the court in a summary
    fashion, where appropriate;

(e)

that the plaintiff file and serve a statement of claim (Form 75.7);

(f)

that an estate trustee be appointed during litigation, and file such
    security as the court directs;

(g)

such other procedures as are just.

[1]
All of the rule 75 provisions referred to in these reasons can be found in
    Appendix A to this judgment.

[2]
The motion judge referred to the participating parties by their first names.
    For ease of reference, I have followed suit.

[3]
Each of N&D and #179 has a number of subsidiaries and/or related entities.
    1597180 Ontario Inc. (#180) is a wholly owned subsidiary of #179. The butterfly
    transaction actually split the assets between N&D and #179/#180.  For ease
    of reference, I refer to #179 alone.

[4]
Edie assumed control of #179 as director on October 6, 2011. However, even
    after that date, she says that she did not have control over all of the
    properties owned by #179, as the team of Sporer, York and Lax continued to
    manage some of the properties in which #179 had an interest.

[5]
Myra objected to the transfer of the hockey tickets on the basis that they did
    not belong to Mr. Neuberger but, rather, to one of the York/Sporer companies.

[6]
With Myras consent, the nickname was removed, some months later.

[7]
Although the motion judge uses the word children, I understand her to be
    referring to the children and grandchildren.

[8]
This appears speculative. No party sought the unwinding of the estate freeze
    and there was no evidence indicating that a successful will challenge would
    necessarily lead to an unwinding of the estate freeze.

[9]
For example, probate declares to the world that the estate trustee holds good
    title and has lawful authority to administer the estate.

[10]
The modern practice is to use the term testator to refer to both males and
    females who die leaving a will. I follow that practice in these reasons.

[11]
Rules 74 and 75 came into force on January 1, 1995, pursuant to O. Reg. 484/94.

[12]
Rule 75.06(1) simply provides that an Interested Person may apply or move for
    directions as to the procedure for bringing any matter before the court.
    Rule 75.06(2) deals with service.

[13]
At the time this appeal was heard, rule 75.06(3)(f.1) also enabled the court to
    direct that a mediation session be conducted under rule 75.1. That section
    was revoked pursuant to O. Reg. 193/15 and a new rule 75.06(3.1) concerning
    mediation was added. These changes came into force on January 1, 2016.

[14]
Nothing in these reasons is to be taken as having decided whether the
Limitations
    Act
applies to the bringing of an application under rule 75.

[15]
Stephen Waddams,
Dimension of Private Law: Categories and Concepts in
    Anglo-American Legal Reasoning
(Cambridge: Cambridge University Press,
    2003), at p. 65.

[16]
Adams parents did offer to make an arrangement to help him finance the cost of
    litigation, if necessary, but Adams uncontroverted evidence was that he would
    have proceeded with his wills challenge regardless of financial assistance from
    his parents. There was no agreement between Adam and his parents that they
    would fund his costs of the litigation or indemnify him if he were
    unsuccessful.

[17]
Following the incident in which Mr. Neuberger promised to make a $20 million
    donation, Edie took steps to have his capacity assessed so that she and Myra
    could assume their powers of attorney over his property.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Pickering Square Inc. v. Trillium College Inc.,
    2016 ONCA 179

DATE: 20160303

DOCKET: C58900

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Pickering Square Inc.

Plaintiff

(Respondent by way of cross-appeal)

and

Trillium College Inc.

Defendant

(Appellant by way of cross-appeal)

Courtney Raphael, for the appellant Trillium College
    Inc.

Alan B. Dryer and Orly Kahane-Rapport, for the
    respondent Pickering Square Inc.

Heard:  November 24, 2015

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated April 29, 2014, with reasons reported at 2014 ONSC 2629,
    44 R.P.R. (5th) 251.

Huscroft J.A.:

Overview

[1]

The main question posed by this case is: When is a claim discovered for
    limitations purposes in the context of a continuing breach of contract?

[2]

Trillium College Inc. (Trillium) and Pickering Square Inc. (Pickering) were
    parties to a long-term lease of space in a shopping centre. Trillium covenanted
    not only to pay rent but also to occupy the premises and to operate its
    business as a vocational college continuously, and to restore the premises at
    the expiry of the lease.

[3]

Trillium paid rent for the duration of the lease but did not operate its
    business continuously and failed to restore the premises when the lease ended. Pickering
    brought a claim for damages for Trilliums breaches of its covenants following
    expiry of the lease.

[4]

Trillium brought a motion for summary judgment, arguing that Pickerings
    claim was brought outside the two-year limitation period under s. 4 of the
Limitations
    Act
, 2002
, S.O. 2002, c. 24, Sched. B. The motion judge held that Trilliums
    breach of the covenant to occupy the premises and operate its business continuously
was of a continuing nature, such that each day of the
    breach gave rise to a fresh cause of action. As a result, only a portion of
    Pickerings claim
against
Trillium for breach
    of its covenant  the portion concerning the breach that occurred more than two
    years prior to commencement of the action
was barred by the
Limitations
    Act
.
The motion judge also held that Pickerings
    claim for damages for breach of the covenant to restore the premises was not
    time barred. (A
claim for arrears of rent was resolved prior to the
    summary judgment motion and was dismissed by the motion judge.)

[5]

Pickering appealed against the judgment but did
    not pursue its appeal
. At the hearing, Trillium abandoned its
    cross-appeal of an award of costs in favour of Pickering arising out of the
    dismissal of its claim for arrears of rent. As a result, this case is concerned
    solely with Trilliums cross-appeal of the partial summary judgment.

[6]

Trillium raises two issues on appeal:

1.

Did the motion
    judge err by finding a continuing breach of the agreement giving rise to a new
    cause of action and a new limitation period each day that Trillium failed to
    carry on business at the leased premises?

2.

Did the motion
    judge err by finding that the repair claim was not statute- barred because it
    concerned repairs at the end of the lease rather than during its term?

[7]

I would dismiss Trilliums cross-appeal for the reasons that follow.

Facts

[8]

Pickering entered into an agreement with Trillium to lease commercial
    space at a shopping centre for a five-year term, from June 1, 2006 to May 31,
    2011. The agreement required Trillium to pay monthly rent and included
    covenants requiring Trillium to operate its vocational college business
    continuously, to maintain the premises throughout the term of the lease, and to
    restore the premises following the expiry of the lease. The relevant covenants are
    set out in Appendix A.

[9]

Trillium gave notice to Pickering and vacated the leased premises in December
    2007. In June 2008, Pickering sued the appellant for rent arrears and payment
    under s. 16.08 of the lease for failing to occupy the premises and to conduct its
    business continuously. The suit was settled in August 2008 with Trillium agreeing
    to resume occupation of the leased premises by October 1, 2008 in accordance
    with the terms of the lease.

[10]

Although
    Trillium paid the rent for the remainder of the lease (with two deficiencies
    not relevant here), it failed to conduct its business continuously at the
    leased premises as required by the covenant.

[11]

The
    lease expired on May 31, 2011 and Pickering brought an action against Trillium on
    February 16, 2012 for arrears of rent; for failure to occupy the premises and conduct
    its business continuously from October 1, 2008 to May 31, 2011; and for breach
    of the covenant to restore the premises.

[12]

As
    noted earlier, Trillium brought a motion for summary judgment, arguing that Pickerings
    claims were time-barred. The parties agreed that this was an appropriate case
    for summary judgment under the principles enunciated in
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87.

The motion judges decision

[13]

The
    motion judge concluded that the two-year limitation period under the
Limitations
    Act
applied to Pickerings claim against Trillium for breach of the
    covenant to operate its business continuously. He rejected Pickerings argument
    that the longer limitation periods under the
Real
Property
    Limitations Act
, R.S.O. 1990, c. L.15
,
applied.
The
    motion judge found that Pickering discovered its claim once Trillium did not
    resume occupation of the leased premises on October 1, 2008. Thus, well before
    the lease expired, Pickering knew that it had suffered damage and knew that it
    could pursue a remedy in a legal proceeding (as it had done in 2008).

[14]

However,
    the motion judge also found that Trilliums failure to resume occupation of the
    premises and to carry on its business continuously from October 1, 2008 gave rise
    to a series of breaches rather than a single breach. Accordingly, Pickering acquired
    a new cause of action every day Trillium failed to operate its business in
    accordance with the covenant until expiration of the lease on May 31, 2011.

[15]

Pickering
    brought its action on February 16, 2012. The motion judge found that Pickerings
    claim for the period from October 1, 2008 to February 16, 2010 was statute-barred,
    but its claim for the period from February 16, 2010 to the expiry of the lease
    on May 31, 2011 was not.

[16]

The
    motion judge found, further, that Pickering sought to recover only for breach
    of the covenant to repair and restore the premises at the end of the lease (and
    not during its term). Accordingly, it was not necessary to determine whether
    the limitation period under the
Real Property Limitations Act
or the
Limitations
    Act
applied because the obligation to restore arose when the lease expired
    on May 31, 2011, and Pickerings February 16, 2012 action was brought within
    the two-year period under the
Limitations Act
 the shortest of the possible
    limitation periods under the two statutes.

Analysis

(1)

The standard of review

[17]

The
    interpretation of the lease and application of the principles of contract law involve
    issues of mixed law and fact and the motion judges decision is to be reviewed
    on a deferential basis:
Sattva Capital Corp. v. Creston Moly Corp
.,
2014 SCC 53, [2014] 2 S.C.R. 633. In the absence of an extricable question of
    law, which attracts the correctness standard, the decision of the motion judge
    is reviewable on the standard of palpable and overriding error.

(2)

When does the limitation period run in the context of a continuing
    breach?

[18]

Trillium
    argues that its breach of the covenant to operate its business continuously was
    complete on October 1, 2008, the first day it failed to resume occupation of
    the leased premises and operate its business, and that each subsequent day that
    it failed to operate its business was not a separate breach but, instead, an instance
    of additional damages.

[19]

Trillium
    submits that a continuing breach of contract requires a succession or
    repetition of separate acts, whereas this is a case of a single act with
    continuing consequences. Although s. 16.08 of the lease quantifies the damages
    payable for every day Trillium failed to carry on business, it does not give
    rise to a separate cause of action each and every day the failure continued.
    Consequently, Pickerings claim is statute-barred because it should have been brought
    within two years of the October 1, 2008 breach  on or before October 1, 2010.

[20]

I
    would reject this submission.

[21]

For
    purposes of s. 5(1) of the
Limitations Act
,
a claim is discovered once a plaintiff knew or ought to
    have known of sufficient facts on which to base the claim. Under s. 5(2), a
    claimant is presumed to discover his or her claim on the day the act or
    omission giving rise to the claim occurs, unless the contrary is proven.

[22]

In
    order to determine the discovery date for the claim, the nature of the breach
    must first be determined.

[23]

Breaches
    of contract commonly involve a failure to perform a single obligation due at a
    specific time. This sort of breach is sometimes called a once-and-for-all
    breach: it occurs once and ordinarily gives rise to a claim from the date of
    the breach  the date performance of the obligation was due. Trilliums breach
    of s. 16.08 does not fall into this category because its obligation to operate
    its business was ongoing rather than single and time-specific.

[24]

A
    second form of breach of contract involves a failure to perform an obligation scheduled
    to be performed periodically  for example, a requirement to make quarterly
    deliveries or payments. A failure to perform any such obligation ordinarily
    gives rise to a breach and a claim as from the date of each individual breach: see
    e.g.
Smith v. Empire Life Insurance Co
.
(1996),

19 CCEL (2d) 171 (Ont.
    Gen. Div.), leave to appeal refused, [1996] O.J. No. 3113 (C.A.). That is not
    this case.

[25]

As
    the motion judge found, this case falls into a third category of breach: breach
    of a continuing obligation under a contract. Trillium breached its covenant to
    operate its business continuously
 at all times
for
    the duration of the lease.

[26]

The
    concept of a continuing breach is not novel. It was outlined by Dixon J. (as he
    then was) in
Larking v. Great Western (Nepean) Gravel Ltd. (in Liquidation)
(1940), 64 C.L.R. 221 (HCA), at p. 236:

If a covenantor undertakes that he will do a
    definite act and omits to do it within the time allowed for the purpose, he has
    broken his covenant finally and his continued failure to do the act is nothing
    but a failure to remedy his past breach and not the commission of any further
    breach of his covenant. His duty is not considered as persisting and, so to
    speak, being for ever renewed until he actually does that which he promised. On
    the other hand, if his covenant is to maintain a state or condition of affairs,
    as, for instance, maintaining a building in repair, keeping the insurance of a
    life on foot, or affording a particular kind of lateral or vertical support to
    a tenement, then a further breach arises in every successive moment of time
    during which the state or condition is not as promised, during which, to pursue
    the examples, the building is out of repair, the life uninsured, or the
    particular support unprovided.

The distinction may be difficult of
    application in a given case, but it must be regarded as one depending upon the
    meaning of the covenant. It is well illustrated by the construction given to
    the ordinary covenant that premises will be insured and kept insured against
    fire. Such a covenant is interpreted as imposing a continuing obligation to see
    that the premises are insured, so that the covenant cannot be broken once for
    all, but, on the contrary, failure to insure involves a continuing breach until
    the omission is made good.

See the discussion in J.W. Carter,
Carters
Breach of Contract

(Lexis Nexis-Butterworths 2011), at ch. 11-64. See
    also
Bridgesoft Systems Corp. v. British Columbia
, 2000 BCCA 313, 74 B.C.L.R. (3d) 212.

[27]

Trilliums argument that breach of its covenant to operate its
    business continuously established a complete cause of action as of
October 1, 2008 overlooks the consequences of its breach. In the face of Trilliums
    action  a serious breach or repudiation of the lease  Pickering had an option.
    It could either cancel the lease or affirm it and require performance: see
Highway
    Properties Ltd. v. Kelly, Douglas & Co. Ltd
., [1971] S.C.R. 562, at p.
    570;
TNG Acquisition Inc. (Re)
, 2011 ONCA 535, 107 O.R. (3d) 304, at
    para. 33.

[28]

The
    election to cancel a contract as a result of a serious breach or repudiation
    brings a contract to an end and relieves the parties of any further obligations
    under it. The contract is not void
ab initio
: the innocent party may
    sue for damages for breach of the contract.

[29]

By
    contrast, if the innocent party elects to affirm the contract despite the serious
    breach or repudiation, the contract remains in effect and the parties are
    required to perform their obligations under it. The innocent party retains the
    right to sue for past and future breaches:
Guarantee Co. of North America
    v. Gordon Capital Corp
., [1999] 3 S.C.R. 423, at para.
    40.

[30]

Pickering
    elected not to cancel the lease following Trilliums October 1, 2008 breach. It
    affirmed the lease and, as a result, the parties were required to perform their
    obligations under it as they fell due.

[31]

Trillium
    could have resumed performance of its obligations at any time prior to the end
    of the term of the lease by carrying on its business at the leased premises in
    accordance with the terms of the covenant. Had it done so, Pickering would have
    been required to accept Trilliums performance and would have been unable to terminate
    the lease in the absence of a further serious breach or repudiation. Trillium
    would have been liable for damages from the date of its October 1, 2008 breach
    until the date it resumed the performance of its covenant obligations, but
    would not have incurred liability for breach of the lease beyond that date.

[32]

Trillium
    chose not to resume its obligations at any point prior to the expiry of the
    lease. In these circumstances, when did the two-year limitation period begin to
    run?

[33]

It
    is clear that a cause of action accrues once damage has been incurred, even if
    the nature or the extent of the damages is not known:
Peixeiro v. Haberman
, [1997] 3 S.C.R. 549, at para. 18;
Hamilton (City) v.
    Metcalfe & Mansfield Capital Corporation
, 2012 ONCA 156, 347 D.L.R. (4th)
    657, at para. 61.

[34]

But
    accrual of a cause of action is not determinative for limitation purposes in
    the context of a continuing breach of contract and an election by the innocent
    party to affirm the contract. The motion judge properly concluded that a fresh
    cause of action accrued every day that breach continued  every day that
    Trillium failed to carry on its business in accordance with the covenant.

[35]

Nothing
    in
Highway Properties

precludes this approach.
    Laskin J.s statement, at p. 576, that
the election to
    insist on the lease or to refuse further performance (and thus bring it to an
    end) goes simply to the measure and range of damages does not speak to a situation
    of continuing breach or the application of the
Limitations Act
.

[36]

I
    agree with the motion judge that the proper approach to the calculation of the
    limitation period in the context of a continuing breach is set out in H.G.
    Beale, ed.,
Chitty on Contracts
, 29
th
edn. (London, UK:
    Sweet & Maxwell, 2004), at para. 28-035 (the position is unchanged in the
    32
nd
edition):

[T]he breach may be a continuing one, e.g. of a covenant to
    keep in repair. In such a case the claimant will succeed in respect of so much
    of the series of breaches or the continuing breach as occurred within the
    [relevant limitation period] before action brought. If the breach consists in a
    failure to act, it may be held to continue
die in diem
until the
    obligation is performed or becomes impossible of performance
or
    until the innocent part elects to treat the continued non-performance as a
    repudiation of the contract.

[Footnotes
    omitted.]

[37]

The
    accrual of fresh causes of action has consequences for the innocent party as
    well as the party in breach of the contract. It sets the clock running for a
    new two-year limitation period. Pickerings election to affirm rather than
    cancel the lease does not have the effect of postponing the date for discovery
    of the breach until expiry of the lease.

[38]

The
    limitation period in this case applied on a rolling basis, a concept
    discussed in
Goorbarry v. Bank of Nova Scotia
, 2011 ONCA 793 at paras.
    11-13 and
Wilsons Truck Lines Ltd. v. Pilot Insurance Co
.
(1996), 31 O.R. (3d) 127 (C.A.) at
    para 58.

The two-year limitation period commenced
    each day a fresh cause of action accrued and ran two years from that date.
    Thus, Pickering was entitled to claim damages for breach of the covenant for
    the period going back two years from the commencement of its action on February
    16, 2012  the period that ran from February 16, 2010 until the lease expired
    on May 31, 2011.

(3)

Was the repair claim statute barred?

[39]

Trillium
    submits that Pickerings restoration claim was related to obligations during
    the lease rather than at its expiry. This claim was therefore discoverable as
    of October 1, 2008 and, as a result, is barred by the two-year limitation
    period under s. 4 of the
Limitations Act
.
Trillium submits,
    further, that if Pickerings claim related to obligations at expiry of the lease,
    it failed to give notice under the lease that repairs were required.

[40]

This argument must also be rejected.

[41]

The motion judge was entitled to find that the respondent was claiming
    only for the breach of the covenant to repair and restore at the end of the
    lease. From this finding it followed that the limitation period for the claim began
    to run on May 31, 2011, and as a result the action was commenced within two
    years of discovery of the claim.
Whether notice was
    provided was irrelevant to the nature of the claim and the
Limitations
    Act
issue.

Disposition

[42]

Accordingly,
    I would dismiss the cross-appeal.

[43]

I
    would order the appellant to pay the respondent costs fixed by agreement at
    $20,000, inclusive of disbursements and all applicable taxes.

Released:  March 3, 2016 GRS"

Grant
    Huscroft J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree H.S. LaForme J.A.

Appendix A

Section 16.08        Failure of the Tenant to Carry on Business

(a)     The Tenant shall take possession of the Leased Premises
    upon the Commencement Date, and shall open the whole of the Leased Premises for
    business, fully fixtured, stocked and staffed upon the Commencement Date (but
    in no event prior to the Opening Date), and thereafter throughout the Term
    conduct its business operations continuously, diligently and actively on the
    whole of the Leased Premises at all times, duly and strictly in accordance with
    the terms, covenants and conditions of this Lease.

(b)     If the Tenant fails to take possession of and to open
    or to reopen the Leased Premises for business, fully fixtured, stocked and
    staffed within the times and in the manner required pursuant to this Lease or
    to carry on business at all times during the Term duly and strictly in
    accordance with the terms, covenants and conditions contained in this Lease,
    the Landlord shall be entitled (i) to collect (in addition to the Minimum Rent,
    Additional Rent and all other charges payable hereunder), an additional charge
    at a daily rate of Ten Cents ($0.10) per square foot ($1.08 per square metre)
    of the Rentable Area of the Leased Premises or One Hundred Dollars ($100.00),
    whichever is the greater, for each and every day that the Tenant fails to
    commence to do or to carry on business as herein provided, the additional charge
    being a liquidated sum representing the minimum damages which the Landlord is
    deemed to have suffered as a result of the Tenants default, and is without
    prejudice to the Landlords right to claim a greater sum of damages; and (ii)
    to avail itself of any other remedies for the Tenants breach hereunder,
    including obtaining an injunction or an order for specific performance in a
    court of competent jurisdiction to restrain the Tenant from breaching any of
    the provisions of this Section 16.08 and to compel the Tenant to comply with
    its obligations under this Section 16.08

Section 11.05        Surrender of the Leased Premises

At the expiration or earlier termination of the Term, the
    Tenant shall peaceably surrender and yield up the Leased Premises to the
    Landlord in as good condition and repair as the Tenant is required to maintain
    the Leased Premises throughout the Term The Tenant shall, however, remove all
    its trade fixtures and any alterations or improvements if requested by the
    Landlord as provided in Section 11.09 before surrendering the Leased Premises,
    and shall forthwith repair any damages to the Leased Premises caused by their
    installation or removal. The Tenants obligation to observe and perform this
    covenant shall survive the expiration of the Term or earlier termination of
    this Lease.

Section 11.09        Removal and Restoration by the Tenant

[T]he Tenant shall, at the expiration of the Term, at its own
    cost, remove all its trade fixtures and such of its leasehold improvements and
    fixtures installed in the Leased Premises as the Landlord requires to be
    removed.


COURT OF APPEAL FOR ONTARIO

CITATION: Pollari v. Famous Players Limited Partnership,

2016 ONCA 180

DATE: 20160301

DOCKET: C60999

Juriansz, Epstein and Pepall JJ.A.

BETWEEN

Coleen Pollari

Plaintiff (Appellant)

and

Scotia Bank Theatre Toronto
,
Famous Players Limited Partnership
, Festival Hall
    Developments Limited and Viacom Canada Inc.

Defendants

and

ThyssenKrupp Elevator

Third Party (Respondent)

William G. Scott, for the appellant

Kara L. Denny, for the respondent

Heard: February 29, 2016

On appeal from the order of Justice Ivan S. Bloom of the Superior
    Court of Justice, dated August 14, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The appellant has failed to advance evidence to rebut the presumption
    under s. 5(2) and to overcome the requirements of s. 5(1)(b) of the
Limitations
    Act
. This is sufficient to dispose of the appeal, which is dismissed.

[2]

Costs in favour of the respondent are fixed in the amount of $7,500 all
    inclusive.


WARNING

The President of the panel has directed
    that no information is to be published regarding this appeal that would
    identify the young persons in these proceedings. This non-publication order
    relates to a prohibition on the publication of the names of or any other
    information that would identify E.A. and Z.A. in this proceeding and the
    contents of Exhibit 10 filed at trial.

This is ordered in accordance with

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
    Subject to this section, no person shall publish the name of a young person, or
    any other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act

111. (1)
    Subject to this section, no person shall publish the name of a child or young
    person, or any other information related to a child or a young person, if it
    would identify the child or young person as having been a victim of, or as
    having appeared as a witness in connection with, an offence committed or
    alleged to have been committed by a young person

138. (1)
    Every person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of
    Canada, 1985,

(a) is guilty of
    an indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)  is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Abbasi, 2016 ONCA 219

DATE: 20160318

DOCKET: C60162

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naqash Abbasi

Appellant

Peter Copeland, for the appellant

Jessica Smith Joy, for the respondent

Heard:  March 14, 2016

On appeal from the conviction entered by Justice J.
    Stribopoulos of the Ontario Court of Justice, dated December 16, 2014, and the sentence
    imposed on March 12, 2015.

ENDORSEMENT

[1]

On February 9, 2012, in the dead of night, someone fired several shots
    from a high powered rifle into the home of E.D.  No one was hit.

[2]

E.D. was scheduled to give evidence against Z.A. in an upcoming criminal
    proceeding.  Z.A. was a friend of the appellant and his brother.

[3]

The shots came from a rifle purchased a few days before the incident by
    the appellant.  He kept the rifle in a gun safe in his bedroom.

[4]

The appellant was charged with several firearms-related offences arising
    out of the shooting.  The Crown alleged that the appellant, in an effort to
    assist his friend, Z.A., had fired the shots into E.D.s home hoping to
    dissuade her from giving evidence against his friend.

[5]

The appellant testified and denied that he committed the offences.  He
    identified his brother as a person who had access to the guns kept in the
    appellants safe in his bedroom.  The brother did not testify.

[6]

The trial judge convicted the appellant on most of the charges and
    sentenced him to a total of eight years imprisonment, less credit of one year
    for presentence custody and strict bail conditions.

[7]

The appellant appeals conviction and sentence.

The Conviction Appeal

[8]

The appellant alleges several errors by the trial judge in his analysis
    of the evidence, his credibility findings, and his factual conclusions.  The
    appellants submissions essentially reargue the issues litigated at trial and
    suggest alternative conclusions to those arrived at by the trial judge.  The
    appellants arguments do not, however, demonstrate that the trial judge made
    any reversible error in his treatment of those submissions.

[9]

The appellant argues that the trial judge made several errors in relying
    on the evidence of the appellants statement to the police that it was not
    possible that his brother took his gun.  This statement was significant to the
    Crowns case as at trial it was central to the defence position that the brother
    did have access to the gun and was the person who had fired the gun into E.D.s
    home.

[10]

The
    trial judge addressed the evidence surrounding the appellants statement to the
    police and the arguments made by counsel (see reasons for judgment at paras.
    72-73).  He ultimately accepted the statement at face value as a denial by the appellant
    that his brother could have used the gun.

[11]

It
    was open to the trial judge to take that view of the evidence and use the
    statement in assessing both the appellants credibility and the force of the
    circumstantial evidence relied on by the Crown.  Arguments that may have
    persuaded some other judge to look at the evidence differently do not justify
    appellate intervention.

[12]

The
    appellant also challenges the trial judges finding that on the evidence he
    accepted the appellant had exclusive access to the firearm used to commit the
    offences.  As we read the trial judges reasons (paras. 82-83), he considered a
    combination of the evidence of the appellants mother to the effect that neither
    she nor her husband had access to the gun in the safe and the evidence of the
    appellants statement to the police that his brother had not used the gun to
    conclude that the appellant was the only person in the household with access to
    the gun.

[13]

In
    our view, that finding was open to the trial judge.  Arguably, he did refer to evidence
    that falls under the rubric of implied hearsay in addressing the evidence of
    exclusive access (see para. 82).  However, he did not rely on that implied
    hearsay in coming to his conclusion that the appellant had exclusive access to
    the gun.

[14]

The
    appellant did not make oral submissions in relation to the remaining grounds of
    appeal.  We have considered the written arguments and, in our view, none of
    those grounds can succeed.

[15]

The
    conviction appeal is dismissed.

The Sentence Appeal

[16]

The
    appellant was sentenced to a total of eight years imprisonment, less credit of
    one year for presentence custody and strict bail conditions.  He submits that
    the trial judge erred in imposing consecutive sentences on count 3 (mischief by
    wilfully damaging a dwelling house by discharging a firearm into the dwelling
    house and endangering life) and count 1 (intimidating a justice system
    participant in order to impede her in the performance of her duties).  The
    appellant submits the same conduct gave rise to both charges and provided the
    factual basis for both convictions.  He submits that the sentences should have
    been concurrent.

[17]

The
    trial judge concluded that the two offences reflected distinct wrongs that
    justified the imposition of consecutive sentences.  He imposed a sentence of
    four years on count 3 and a sentence of three years consecutive on count 1.  In
    doing so, he specifically referred to the totality principle and its
    significance given the appellants youth and minimal criminal record.

[18]

The
    trial judge had the discretion to impose consecutive sentences on the two
    charges.  We would not interfere with the exercise of that discretion.  More
    importantly, as the trial judge observed, whether consecutive or concurrent
    sentences were to be imposed, the totality of the sentences imposed was what ultimately
    mattered.

[19]

The
    offences committed by the appellant were very serious.  They involved the use
    of a very dangerous lethal weapon for a purpose that struck at the very heart
    of the due administration of justice.  As observed by the trial judge:

This was a planned and deliberate attack on the home of a
    witness in a criminal case using a high powered semi-automatic restricted
    firearm.  Although no one was injured or killed in this attack, that was a
    matter of sheer luck.  Had a member of the  family been asleep on the sofa in
    the living room or getting a drink from the kitchen when the shooting took
    place they could very likely have been killed.

[20]

Later
    in his reasons for sentence, the trial judge observed:

The seriousness of the crimes involved in this case is hard to
    overstate.  The accused committed a planned assault on the home of a witness in
    a criminal case in the middle of the night using a high powered rifle.  These
    were deliberate and calculated crimes designed to intimidate a witness.  This
    was not simply an assault on a home in the tranquility of a residential
    community, it was an assault on the administration of justice.

[21]

We
    adopt the language of the trial judge.  No doubt the sentence imposed on the
    charge of intimidating a justice system participant (three years) would have
    been much higher, but for concerns over the totality of the sentences imposed in
    light of the appellants age and the absence of any prior significant criminal
    involvement.

[22]

The
    total sentence imposed is not unreasonable.  We would not interfere with the
    quantum of the sentence.

[23]

One
    aspect of the sentencing does require correction.  Although the trial judge
    waived the victim fine surcharges, an order imposing the surcharges was signed
    by the clerk of the court.  The Crown agrees that this order must be quashed.

[24]

The
    sentence appeal is dismissed save that the order imposing victim fine surcharges
    is quashed.

Doherty J.A.

Janet Simmons J.A.

K.M. van Rensburg
    J.A.