Pappas v Hunt, 2016 ABQB 208

Court of Queen ’ s Bench of Alberta Citation: Pappas v Hunt, 2016 ABQB 208 Date: 20160408 Docket: 1301 13477 Registry: Calgary Between: Thomas Pappas, Executor of the Will of Luella May Pappas, Deceased Plaintiff - and - Harrison Hunt, also known as Harry Pappas Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] This matter involves an action by the Plaintiff Thomas Pappas, executor of the will of Luella May Pappas, deceased, against Defendant Harrison Hunt, in which Mr Pappas seeks to have this Court declare void a transfer of land that was allegedly executed just days before the deceased’s death. Mr Hunt challenges that declaration, and argues that the transfer of land is valid.

II.

Summary [ 2 ] Luella May Pappas (the “Deceased”) moved to Calgary in 1988, after she separated from her husband. She bought the following property in 1992, which was registered in her name: PLAN 1332N BLOCK 11 LOT43 EXCEPTING THEREOUT ALL MINES AND MINERALS (the “House”). The House is municipally described as 321 - 8 Avenue NE, Calgary, Alberta. [ 3 ] In 1998, the House was transferred into the names of the Deceased and Mr Hunt, as tenants in common. Mr Pappas testified that the Deceased never discussed this transfer with him. [ 4 ] In the Spring of 2011, the Deceased was diagnosed with cancer.

She died on October 22, 2011. She was survived by three sons, being Mr Pappas, Mr Hunt, and Stan McDonald of London, Ontario. Mr Pappas applied for and obtained a grant of probate on June 3, 2013. [ 5 ] On or about October 25, 2011, Mr Hunt presented to the Alberta Land Titles Office a transfer of land with respect to the House ("Transfer of Land"). The Transfer of Land was registered on October 27, 2011 .

As a result of the registration of the Transfer of Land, title to the House issued into the names of the Deceased and Mr Hunt, as joint tenants. [ 6 ] Mr Hunt submitted for registration to the Alberta Land Titles Office an affidavit of surviving joint tenant and requisition for transmission of title to the House . As a result of registration of these documents, title to the House was registered into Mr Hunt’s name on or about November 7, 2011. [ 7 ] The Transfer of Land bore Mr Hunt’s signature and what is purportedly the Deceased’s signature.

The witness to these signatures, David Conquergood (“David”) completed an affidavit of execution. The oath was purportedly taken in Calgary by Kenneth Mishark, a notary public for the State of Arizona. His notary stamp appears on the affidavit of execution. [ 8 ] Mr Pappas caused to be registered a caveat and a certificate of lis pendens at the Alberta Land Titles Office against the title to the House. He commenced this action on June 13, 2013 . III. Testimony – Lay Witnesses [ 9 ] Mr Hunt testified that when the House was purchased, he, the Deceased, and Mr Hunt’s then partner contributed money to the purchase.

He has lived in the House off and on since it was purchased. Mr Hunt has lived in and travelled to many countries throughout the world. When he was not living in the House, it was rented. The Deceased never lived in the House. [ 10 ] The Deceased executed a will dated November 8, 2007 (the “Will”). The Will does not mention the House, or any other specific bequests. It refers only to the estate residue, which is to be divided equally among her 3 children. Terry Lloyd was the lawyer who prepared the Will in 2007.

Mr Lloyd produced his handwritten notes of the meeting in which he received instructions from the Deceased. Those notes indicate that the Deceased advised him that she and Mr Hunt held the House as joint tenants. Because of Mr Hunt’s right of survivorship, the House was not addressed in the Will. [ 11 ] The Deceased named her friend Sheila Parisien as executrix of the Will, and Mr Pappas as the alternate executor. Ms Parisien had been the Deceased’s friend for about 20 years, from the time they worked together. She saw the Deceased as a mentor.

When the Deceased asked Ms Parisien if she would be the executrix, Ms Parisien said she would accept that position on condition that the Deceased’s estate was “clean,” meaning that there would be no dispute concerning her estate. The Deceased told Ms Parisien that her estate would be very simple. She would only have to divide her bank accounts and “trinkets.” [ 12 ] On many occasions, the Deceased explained to Ms Parisien that the House was always Mr Hunt’s house. The Deceased had to be on title, so that if there were difficulties with the House while Mr Hunt was away, she could deal with them.

Similarly, Mr Hunt could take care of difficulties involving the House if the Deceased were away. The Deceased thought she had taken care of title to the House with Mr Hunt. Again, the only things with which the Deceased thought Ms Parisien had to deal were the bank account and the “trinkets.” [ 13 ] The Deceased did not like the cold, so she would escape Calgary and live elsewhere during the winters. In 2011, she was in Crete. At some point while she was in Crete, the House sustained severe water damage as a result of freezing pipes.

Mr Hunt was dealing with the repairs to the House and with the insurance company. [ 14 ] While in Crete, the Deceased started feeling unwell. Mr Hunt went to visit her in Crete. He was very concerned about her health. She returned to Calgary in May or June of 2011. When she returned to Calgary, she chose not to move into the House, as she felt

it was in “ill-repair.” She moved into Trinity Lodge in June, where she stayed for a couple of months. She was not comfortable there, as there were “too many old people,” so she moved into an apartment in the Eau Claire area of downtown Calgary. Mr Hunt thought that perhaps her friends might have helped her to locate and rent the apartment. [ 15 ] The Deceased discussed the House with Ms Parisien. After Mr Hunt obtained the Will, Ms Parisien asked them whether they checked title to the House; was it the “survivor kind”? It became Mr Hunt’s job to check this out and ensure that it was.

Ms Parisien was the one who brought up this issue. [ 16 ] On or about June 18, 2011, the Deceased executed a document that purported to transfer the House to Mr Hunt (the “Purported Transfer”). Although it was not finalized properly, the Purported Transfer was produced for a couple of reasons. First, Mr Hunt produced it to show the Deceased’s intention concerning the House. The second, was to show the date on which the Deceased created a note that was with the Purported Transfer (the “Note”). The Purported Transfer was signed in the presence of a witness named Poul Bay.

Mr Bay knew Mr Hunt through David, and had met the Deceased on a number of occasions. [ 17 ] Mr Hunt and the Deceased asked Mr Bay to visit them at the House. Mr Bay testified that he was present at the time Mr Hunt and the Deceased signed the Purported Transfer, and he confirmed that after they had signed, he signed as the witness and inserted the date “18 June 2011.” After they finished signing the Purported Transfer, Mr Bay testified that the Deceased said she wanted to prepare the Note just in case she “keels over.” Mr Bay saw the Deceased beginning to prepare the Note.

He and Mr Hunt then walked around the House looking at the various damage and repairs that resulted from the burst pipes. When they returned, Mr Bay saw the Deceased complete the Note, which reads as follows: To Whom it May Concern. By this paper I request and order that the property at 321 8 Ave NE in Calgary belongs to Harrison Hunt. It has been kept in my name only as a Convenience to him. “L.M. Pappas” [ 18 ] Mr Hunt confirmed, through his testimony, the facts as Mr Bay presented them. [ 19 ] Danny Arnold Johnston is the Deceased’s younger brother.

He maintained a friendship with her throughout the years and he felt that they got along. He would visit her from time to time “at the House,” which was interesting because Mr Hunt testified that the Deceased never lived in the House. [ 20 ] In July 2011 she became sick and she asked Mr Johnston for his help, as she did not feel that she could manage on her own. Thus, Mr Johnston looked around for an apartment near where she lived. He found one in the same building, so he moved into that apartment on September 1, 2011. At first, she was maneuvering on her own, but she was later restricted to a wheelchair.

The routine that they kept was that he would go down to help her early in the morning and stay with her. Sometime during the day, Mr Hunt would come to her apartment to spell Mr Johnston off. It was like they were taking shifts. Occasionally, both he and Mr Hunt would be present. [ 21 ] Sometime in July of 2011, the Deceased told Mr Johnston that the House was to be divided among her 3 sons. Around the middle of September 2011, Mr Johnston overheard a conversation among the Deceased, Mr Hunt and Ms Parisien, in which they were discussing the transfer of the House into Mr Hunt’s name.

The Deceased wanted to get the matter of the House “straightened out,” as she wanted Mr Hunt to have the House. Mr Hunt would attend to this matter. Mr Hunt and Ms Parisien confirmed that this conversation had taken place. Because this was different from what the Deceased had told Mr Johnston a couple of months before, he wanted to discuss this with her “one-on-one,” to ensure that these were her wishes.

He asked her whether he had heard her correctly about transferring the House into Mr Hunt’s name and she responded in the affirmative. [ 22 ] Ms Parisien suggested that the Deceased attend a lawyer’s office to deal with this matter. The Deceased responded by saying that Ms Parisien would have to ask Mr Hunt because it was “his problem.” A week or 10 days later, Mr Hunt mentioned that he needed the Deceased to go to the Alberta Land Titles Office to effect the transfer. When she was in good spirits, Mr Johnston would ask her whether she wanted to go to the Alberta Land Titles Office.

She would answer in the negative because Mr Hunt was not present. Mr Johnston approached this about 6 times, and she always provided the same response. On October 11, 2011, Mr Johnston asked her again and she said a firm “no.” Two days later he asked her again, and she just “glared” at him, so he never raised the issue again.

Similarly, Ms Parisien stopped raising the issue concerning the House because it was not “her business.” [ 23 ] Sometime after the September meeting among the Deceased, Ms Parisien and Mr Hunt, Mr Johnston told Mr Hunt that he should get the House transferred or “there would be a lawsuit.” After many attempts had been made by Mr Johnston to take the Deceased to the Alberta Land Titles Office to execute the transfer, Mr Hunt allegedly arranged a meeting to have the Transfer of Land signed.

He contacted David on the morning of October 17, 2011, to ask him to obtain the transfer of land form online, to fill it out as best he could, and to bring the form to the Deceased’s apartment. Mr Hunt gave details to David that he gleaned from a copy of the certificate of title to the House. David followed Mr Hunt’s instructions. Mr Hunt was presented with the Transfer of Land that was made an exhibit in these proceedings. He testified that David had completed the typewritten portions of the form. [ 24 ] David would be the witness to the signatures of the Deceased and Mr Hunt.

Dr Mishark would be the notary public who would complete David’s affidavit of execution. [ 25 ] The meeting to execute the Transfer of Land would take place on October 17, 2011, at the Deceased’s apartment. On the morning of October 17, 2011, the Deceased sustained an injury to her left arm as a result of a fall in her apartment. Mr Johnston maintained a diary during the period that he was caring for the Deceased.

On October 17, 2011, the date on which the Transfer of Land was allegedly executed, Mr Johnston came the Deceased’s apartment quite early in the morning and found that she had taken the fall and injured her arm. He arranged for someone to come to see her to tend to her arm. Mr Johnston testified that Mr Hunt did not arrive at the Deceased’s apartment until around 11:00 a.m. Mr Hunt, on the other hand, testified that he attended the Deceased’s apartment twice on October 17, 2011. Once was in the morning when he saw the injury to the Deceased’s left arm. He testified that the injury was more

extensive than the description Mr Johnston had provided. He also saw the nurse bandage the Deceased’s arm. The second was to attend to the meeting with the others to sign the Transfer of Land. In any event, Mr Johnston left the Deceased’s apartment at around 11:00 a.m. to tend to his personal affairs. [ 26 ] Although this Court was not given any details of when and why Mr Hunt left the Deceased’s apartment during the morning of October 17, 2011, he testified that he returned to her apartment later in the afternoon. When Mr Hunt arrived at the Deceased’s apartment, Mr Bay and the Deceased were already there.

Mr Bay went to see the Deceased that day, as he knew she was unwell, so he simply wanted to pay her a visit. He attended her apartment early in the afternoon. The Deceased said nothing to Mr Bay about an injury to her arm. Mr Bay recalls that Dr Mishark and Mr Hunt arrived together. This is contrary to Mr Hunt’s testimony. Mr Hunt testified that he does not know how Dr Mishark came to Calgary, or how or when he left. He first saw him when he arrived at the Deceased’s apartment. He had given the address to Dr Mishark. David arrived about 10 minutes later, according to Mr Bay.

Mr Hunt testified that David arrived about thirty to forty minutes after Dr Mishark had arrived. David testified that he had arrived at about 2:00 p.m. By the time David arrived, Dr Mishark was already there. The Deceased told Mr Bay that she had to sign some documents to deal with property she had. Both David and Mr Bay described the Deceased as being “feisty” that day. [ 27 ] Neither David nor Mr Bay had ever met Dr Mishark before that day. Mr Bay knew of Dr Mishark through David. David had told Mr Bay that Dr Mishark was coming to Calgary to discuss some business plans with his brother Jonathan.

Beyond that, Mr Bay did not know why Dr Mishark was there. [ 28 ] When David arrived, Mr Bay was making plans to leave the Deceased’s apartment. David testified that the documents were placed in front of the Deceased on a small, wheeled table. The table was pushed towards her. She then signed the document. Mr Bay gave the Deceased a hug and was leaving just as David was signing.

Mr Bay did not see Mr Hunt sign. [ 29 ] Mr Hunt testified that the Deceased said “Let’s get on with this, let’s get it done.” When someone else tried to add some levity to the situation, Mr Hunt testified that the Deceased said something to the effect that “she can’t take it with her.” David testified that the Deceased told them that the House was wrongly registered in that it was not registered in “joint tenancy.” David said that she used this term. Mr Bay said nothing about this exchange. Like Mr Bay, David had heard nothing about the Deceased’s injured arm.

David saw the Deceased and Mr Hunt sign the Transfer of Land, after which, Mr Bay left. While she was signing, David said that he “jogged” the table on which the Transfer of Land was located. He then signed as the witness. [ 30 ] As for the affidavit of execution, David testified that Dr Mishark “repeated the oath” that was contained in the affidavit. David then signed his name, followed by Dr Mishark. This is when Mr Hunt testified that he saw Dr Mishark’s notary stamp. David does not recall Dr Mishark affixing his notary stamp to the Transfer of Land.

The affidavit concerning the value of the land was not completed at that time. [ 31 ] David testified that he spoke to the Deceased about visiting her with his family and then he left. He was not at the Deceased’s apartment for more than 1-hour. He had no further conversations with Dr Mishark. [ 32 ] Mr Hunt testified that a little while later, he left with Dr Mishark and walked back to the House. Dr Mishark stayed at the House “for a couple of hours.” During this time, David’s brother, Jonathan Conquergood (“Jonathan”), came to the House.

Mr Hunt had asked Jonathan to come to the House to meet Dr Mishark in person to discuss an online pharmaceutical business that Mr Hunt was exploring along with Jonathan. Jonathan had met Mr Hunt through David. Jonathan was involved in an internet pharmaceutical business in the early 2000s, but sold it in 2010 or 2011. Mr Hunt approached him in the Spring or Summer of 2011, about the possibility of setting up another internet pharmaceutical business. They discussed the mechanics and risks. They had about 10 meetings.

Mr Hunt said that he had a physician contact in Arizona, who would be willing to speak with them. [ 33 ] Jonathan produced a business card that showed a potential contact at the Mayo Clinic in Arizona. On the back of the business card was the date on which he met with Dr Mishark, which was shown as “October 15, 2011.” As well, the back of the business card showed Dr Mishark’s banking details to provide him with a commission if the business contact that was reflected on the business card was successful.

The banking details were in Jonathan’s handwriting. [ 34 ] Both Jonathan and Mr Hunt testified that the meeting took roughly 30 minutes. Jonathan testified that they sat in the House and just chatted. They discussed the types of business they were looking for, the types of doctors who might be interested in their business plan, and how Dr Mishark would be involved. They had no small talk, such as how Dr Mishark arrived or when, or when he would be leaving. [ 35 ] Mr Hunt testified that they discussed allocation of drug shipments, remuneration, banking, referral schedules and the like.

A “whiteboard” was used for the purposes of these discussions. Jonathan said nothing about a “whiteboard.” After this, Dr Mishark said that he had to “get back” so the discussion ended and Dr Mishark left. [ 36 ] Mr Johnston returned to the Deceased’s apartment at about 3:30 p.m. on October 17, 2011. Mr Hunt was not at the apartment when Mr Johnston returned, so Mr Johnston just stayed with the Deceased. Mr Johnston left for a moment to obtain some prescription medicine for the Deceased. Mr Hunt returned to the apartment at around 8:00 p.m. Mr Johnston left the apartment at about 9:00 p.m.

During the time that Mr Johnston was visiting with the Deceased that day, she did not indicate to him that she had had visitors, other than Mr Hunt and Mr Johnston. Nor did Mr Hunt. [ 37 ] Mr Johnston was not aware of any meeting in which the Deceased had executed the Transfer of Land. [ 38 ] Mr Hunt’s counsel contacted Mr Johnston just before this trial started. Counsel wanted to email Mr Hunt some documents. The documents were, in the main, excerpts from a coil-binder that was in the Deceased’s apartment, in which various notes were made by various people.

Most of the notes related to the comings and goings of the Deceased’s health care workers and their telephone numbers. Of importance is an undated note in Mr Johnston’s handwriting which says the following: • Cremation – Pay for

• House is Harry’s • Everything ÷ 3 • No safety deposit box [ 39 ] Mr Johnston recalls writing this, but he could not tell this Court when he did so. He thought it might have been in the latter part of September 2011, or early October 2011, but he did not know for certain. He also testified that this information came from the Deceased. [ 40 ] Mr Johnston does not know the whereabouts of this coil-binder. The last time he saw it was in the Deceased’s apartment the day before she died. [ 41 ] Mr Hunt’s counsel also presented the Note to Mr Johnston.

Mr Johnston had not seen it until about a week before this trial began. [ 42 ] Mr Hunt completed the affidavit of value after the Deceased died. He took the Transfer of Land to the Alberta Land Titles Office and completed this affidavit in front of a commissioner for oaths at that office. Interestingly, he placed the abbreviation “Dr” before his signed name.

He testified that this is an old nickname and is short for “directeur.” He could not explain why he signed it this way, although he said that he was “on drugs” and under stress. [ 43 ] Mr Hunt registered the Transfer of Land with the Alberta Land Titles Office. [ 44 ] Ms Parisien was not aware of the alleged meeting that took place on October 17, 2011. She found out about the Transfer of Land after the Deceased had died. Ms Parisien went to talk to her lawyer about the Transfer of Land because she “did not like the look of it.” The Deceased’s signature did not look like her signature.

She thought that Mr Hunt “panicked.” Mr Hunt’s lawyer told her that the Transfer of Land was fine. Eventually, Ms Parisien renounced her position as executrix because her lawyer said that the matter was going to get contentious and Ms Parisien would likely be a witness in any proceedings. Ms Parisien renounced her right to apply for letters probate on or about November 8, 2011. [ 45 ] Mr Pappas testified that after the Deceased moved into the apartment, he was seeing her 4 or 5 times during the week. He also visited her while she was in the Trinity Lodge.

During the times he spent with her, she did not discuss title to the House. Nor did he make any inquiries about it. There were, however, conversations about the House when Mr Hunt was present. Mr Hunt was concerned about how the House was registered, as he wanted it changed. Just before the Deceased died, Mr Hunt said that the Deceased was “fucking with me,” with respect to the title to the House.

All those present, which included Mr Pappas, Mr Hunt, Mr Pappas’s wife and another sister in law, however, were “taken aback by that language.” Whenever the House was discussed, the Deceased would simply look at Mr Hunt or say something to appease him. [ 46 ] In an email dated October 17, 2011, Mr Pappas was corresponding with Ms Parisien. He said that the Deceased “sounded like crap.” Earlier that evening, he tried to call the Deceased around supper time. Mr Johnston picked up the telephone and was reluctant to put the Deceased on the telephone.

In the email, Mr Pappas said, “Apparently her arm was scraped so bad that [Mr Johnston] had a nurse come in to bandage it.” Mr Pappas went on to testify that the Deceased was not doing well and she sounded weak and distraught. All she said was that “it was a bad day.” She did not mention that she had had visitors that day. [ 47 ] In an email that Mr Pappas sent to Ms Parisien on October 19, 2011, Mr Pappas suggested to Ms Parisien that perhaps the Deceased should go into a hospice, so she could get more care. At that time, she was having vision problems, and was generally not doing very well.

This was 2 days after the alleged meeting. [ 48 ] After the Deceased died, Mr Pappas received a letter from Ms Parisien’s lawyers, Schultz Birklein Bruce, in which they advised that Ms Parisien would renounce her appointment as executrix if he and his other brother, Stan, would not acknowledge the title to the House in Mr Hunt’s name alone. Ms Parisien felt that Mr Hunt should have the House. She was scared of Mr Hunt. Stan said he would not sign this letter, and was going to retain counsel. The letter also gave Mr Pappas advice on what he should do if he wanted to question the validity of the Transfer of Land.

Once he became executor, he took those steps. It was only after he became the executor, that he learned of the Transfer of Land and its registration. [ 49 ] Mr Pappas had discussed the Transfer of Land with Ms Parisien. It was her opinion that the Transfer of Land did not bear the Deceased’s signature. She felt it was a forgery. [ 50 ] Mr Pappas obtained a package of documents that bore the Deceased’s signature.

These documents were made an exhibit in these proceedings. [ 51 ] Mr Pappas has never met Dr Mishark, and had no knowledge of him, other than the fact that he was apparently a friend of Mr Hunt. [ 52 ] Mr Pappas and Mr Hunt have a “strained relationship.” In fact, before the Deceased got sick, it had been fifteen to twenty years since they last saw each other. Mr Pappas had never visited the Deceased at the House, but did so once after the Deceased got sick. IV.

Testimony – Expert Witness [ 53 ] This Court has chosen to deal with the testimony of the expert witness separately from the lay witnesses, as the issues the expert witness addresses do not fit within the narrative of the lay witnesses. Mr Pappas presented Daniel Cameron Purdy as an expert forensic document examiner and handwriting expert. Mr Hunt did not contest Mr Purdy’s expertise, but this Court wanted to hear his qualifications, training and experience that would allow it to qualify him as an expert in those fields. After hearing that evidence, this

Court so qualified Mr Purdy. [ 54 ] Mr Purdy presented this Court with his report dated April 13, 2015 (the “Report”), and, as well, presented this Court with his viva voce evidence. This Court does not see any utility in transcribing his entire report, but it intends to highlight certain matters that will permit an understanding of the conclusion that he reached. [ 55 ] Mr Purdy received a reproduction of the Transfer of Land, which allegedly bears the Deceased’s signature. As well, he received twenty-four specimens of the Deceased’s signature (the “Specimen Signatures”).

All of the signatures were reproductions, in the sense that they were photocopies or facsimile transmission copies of her signature. Of course, Mr Purdy assumed that the specimen signatures were authored by the Deceased.

Not satisfied with the copy of the Transfer of Land that he received, Mr Purdy attended at the Land Titles Office in Calgary to examine the originally-executed copy of the Transfer of Land (the “Questioned Signature”). [ 56 ] There are certain general principles that Mr Purdy applied to his handwriting analysis, which he articulated in his report as follows: • Handwriting produced by two experienced writers is never exactly alike. • The significance of any feature, as evidence of identity or nonidentity, is determined by considering its rarity, the relative speed and naturalness with which it is written, and its agreement or disagreement with the corresponding feature in the specimen material. • A person is unable to imitate all features of another person's writing while simultaneously writing at the same relative speed and skill level as the writer he is seeking to imitate. • When imitating the signature of another person or altering one's own signature, a writer tends to be more successful when imitating or altering more obvious features and less successful when replicating or altering subtle, less conspicuous elements. • Features associated with spurious signatures include hesitations, pen lifts, careful retouching, varying degrees of speed, wavering lines or tremor, a drawn appearance of the writing and blunt stroke endings. • Handwriting identification is based on the premise that the handwriting of each experienced writer contains a combination of significant habits that make it identifiable.

These habits are the result of hundreds of thousands of repeated movements of the arm, hand and fingers regardless of whether an entry is cursive writing, hand printing, initials or signatures. Through practice these movements become so automatic that the writer is unaware of the combination of letter forms, connecting strokes and flourishes which combine to produce inscriptions that are truly distinctive and unique. • A signature is identifiable if it contains a sufficient number of significant characteristics that also appear in a representative quantity of specimen signatures written by a suspect writer.

Those features that bear the most weight are those which are both unusual and which occur repeatedly over time. These characteristics include the nature of initial, connecting and terminal strokes, pen pressure patterns, line quality, the relative heights of letters, writing speed, the position of letters relative to the baseline, flourishes, extreme letter variations and skilled movements to name just a few.

Tremor, hesitations, guidelines, careful retouching and concealed pen lifts, ' on the other and, generally do not appear in writing or signatures produced by a skilled penman but instead are typically found in signatures that have been copied or simulated in an effort to reproduce the writing habits of another person. Report at 5-6 [ 57 ] He then examined the Questioned Signature and noted that it appeared that the writer used a different pen from that used by the other signatories to the Transfer of Land.

As well, he noted 8 specific irregularities that appeared in the Questioned Signature that “do not appear in freely executed signatures”: Report at 6. He referred to these as “suspicious features”: ibid. Mr Purdy wanted to emphasize that these differences do not attest to the spurious nature of the signature; simply, they arouse suspicion. [ 58 ] Mr Purdy then undertook a comparison of the Specimen Signatures to the Questioned Signature. He examined them collectively to see the “signature habits” of the writer. He emphasized that signatures do not superimpose on each other.

There are variances in style from one signature to the next. In particular, he establishes ranges of variation, which habits are recurring, and how they recur. He is also looking for “unusual features” that are not seen in general population. He noted that there were “significant differences” between the Specimen Signatures, on the one hand, and the Questioned Signature.

He provided an enlarged copy of the Questioned signature and identified the differences numerically, starting with the letter “D.” His observations are as follows: Dl The initial stroke of the "L" in the questioned signature does not hook upwards to the same extent as the corresponding initial stroke in the specimen signatures. D2 The small lower loop of the "L" in the questioned signature has an irregular shape contrary to the smooth loops present in the

specimen signatures. D3 The terminal stroke of the "L" in the questioned signature does not drop below the baseline as is the case in the specimen material. D4 The eyelet of the "e" in the questioned signature is open whereas the eyelet of this letter is closed in the specimen signatures. D5 The "ll" combination in the questioned signature is taller relative to the "L" than the same letter combination in the specimen material. D6 The "l" and "a" are connected in the questioned signature but disconnected in the specimen signatures.

D7 The staff stroke of the "P" in the questioned signature slopes forward to a greater degree than is the case in the specimen signatures. D8 The staff stroke of the "P" is disconnected from the body of the letter in the questioned signature. These two components are joined in the specimen signatures. D9 The initial stroke of the "a" in the surname of the questioned signature begins at the top of the body but in the specimen signatures the initial stroke rises upwards from the baseline.

D10 The staff strokes of the "p" in the questioned signatures slope forward to a greater degree than they do in the specimen signatures. D11 The terminal stroke of the body of the "p" hooks upwards or is aligned parallel to the baseline in the questioned signature. This component of the letter consistently slopes downwards in the specimen signatures. D12 The letters "p" and "a" are connected in the questioned signature but these letters are disconnected in the specimen material. D13 The pen lift in the initial stroke of the "s" in the questioned signature is absent in the specimen signatures.

Report at 8. [ 59 ] Mr Purdy put particular weight on certain of these factors, and put moderate weight on others. When this Court questioned Mr Purdy, as to which factors he considered carried the most weight in this instance, he stated that items D1, D3, D6, D7, D9 and D12 carried the most weight, in his mind. [ 60 ] As a result of this, he concluded as follows: The writer (Luella PAPPAS) of the specimen signatures on items K-lc through K-24c did not write the questioned "Luella M. Pappas" signature on item Q-1.

Report at 8. [ 61 ] K-1c through K-24c refer to the Specimen Signatures and Q-1 refers to the Questioned Signature. [ 62 ] Mr Purdy testified that he did consider the Deceased’s physical infirmities, age, and her sickness, as these can be a factor in his analysis.

In fact, Mr Hunt’s counsel read a portion of the following, which appears on Mr Purdy’s website: Largely a reflexive action, a person's handwriting is subject to changes which depend upon his/her mood, physical condition, muscular co-ordination and external influences such as writing conditions, drugs, alcohol, nervousness or the nature of the document bearing the writing.

Forensic Document Examination Services Inc (March 11, 2016), online: http://www.fdeservices.com/ , “Handwriting Specimens: Submitting Exemplars” [ 63 ] He also testified that he has seen cases where patient’s health can be so serious that it affects their signature. His biggest concern, however, was the inconsistent line quality in the Questioned Signature, especially between the first and second name. [ 64 ] Interestingly, the Report says nothing about the Deceased’s physical condition or the circumstances under which she signed the Transfer of Land. Mr Purdy said that this was not important to his conclusion.

Again, his major concern was with the line quality of the Questioned Signature. [ 65 ] When Mr Hunt presented him with 2 other signatures that Mr Purdy had not seen, Mr Purdy confirmed that they were the Deceased’s signatures, and explained why, using the same analysis he had done with the Specimen Signatures. V. Discussion [ 66 ] As one can see from the foregoing, someone, or a group of people, are not being forthright with this Court. The stories that have been told to this Court by each side are not consistent.

It is this Court’s responsibility to try to make some sense of all of it, and to determine who, in its mind, is telling the truth. [ 67 ] This Court finds it useful to examine the testimony of various parties individually, and some of the evidence that the parties presented to it, rather than simply to provide a blanket analysis of certain evidence. A. Dr Mishark

[68] Early in this trial, Mr Pappas sought admission of certain information his counsel obtained from Canada Border ServicesAgency (“CBSA”) related to Dr Mishark. Mr Hunt objected to this Court considering that information. After a voir dire, this Court ruledthat the CBSA information was admissible, and provided cursory reasons for its ruling. It advised the parties that it would provide itsreasons as part of its final decision.

These are those reasons. [69] Because Dr Mishark provided evidence that he was not in Calgary on or about October 17, 2011, Mr Pappas’s counsel sent aletter dated December 3, 2015, to CBSA seeking “any record of Dr. Mishark’s having entered Canada through the Calgary InternationalAirport on or about October 16 or 17, 2011.” Along with the request was Dr Mishark’s authorization, a copy of his passport, and aprocessing fee. [70] CBSA responded to this letter by way of an email.

The substantive content of the email will be discussed in a moment, but,for now, CBSA advised that the substantive information in the email is all that it would provide. It would not provide an affidavit. As aresult, Mr Pappas filed an application on February 3, 2016, that would compel the CBSA officer to provide evidence by way of videoconference. [71] As a result of this application, the Department of Justice Canada contacted Mr Pappas’s counsel. The Department’s counselchallenged the application, and provided his reasons for the challenge.

Inasmuch as Mr Pappas’s counsel accepted the reasons for thechallenge, he requested a letter from CBSA outlining its position and providing further substantive information that confirmed thecontent of the email referred to above. [72] CBSA responded with its letter dated February 15, 2016. In the letter, it said that it would not provide an affidavit outlining itsfindings. Its position was that the information is “customs information,” as defined in the Customs Act, RSC, 1985, c 1 (2nd Supp),which, in part, provides as follows: 107

(1) The

definitions in this subsection apply in this section. customs information means information of any kind and in any form that (

a) relates to one or more persons and is obtained by or on behalf of (

i) the Minister for the purposes of this Act or the Customs Tariff, or ... (

b) is prepared from information described in paragraph (a). ...

(10) Despite any other Act of Parliament or other law, no official may be required, in connection with any legal proceedings, to give orproduce evidence relating to any customs information. [73] The substance of the email to which this Court previously referred states as follows: There were no entries found in our Travel History system (ICES) for the dates requested; only 1 record of entry has been found sinceAug 2000 and it was in 2004. [74] The February 15, 2016 letter provides as follows: The search of the Integrated Customs Enforcement System (ICES), from which Travel History Reports for travellers entering Canada areextracted, was done as per our standard operating procedures.

I have attached a screen shot from our Integrated ICES which shows thecriteria, time period used and the search results [No data found] when we conducted our search of the system. [75] The screen shot was of a “Traveller Passage Report” and showed the programs that CBSA searched.

It showed, “No datafound with given selection criteria ...” [76] Mr Pappas sought to enter the email and letter as “secondary evidence,” which is described as “evidence which may be givenin the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence”: Hodge M Malek, ed, Phipson on Evidence, 17th ed (London, UK: Sweet & Maxwell, 2010) [Phipson] at para 41-18[emphasis added].

Of course, it might have been better to have the primary evidence of the CBSA officer providing viva voce evidenceduring the trial of this matter, or an affidavit that Mr Hunt could test through questioning. It is clear, however, that CBSA would notproduce its officer or an affidavit because of the provisions contained in the Customs Act. [77] What is a “proper explanation”?

In Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, The Law of Evidence in Canada, 4th ed (Markham, Ontario : LexisNexis, 2014) [Lederman] at §18:55, the authors say, “Ordinarily, a third party within thejurisdiction must be served with a subpoena duces tecum.” In this case, Mr Pappas filed an application seeking a court order requiring aCBSA officer to appear before the court and produce the evidence concerning Dr Mishark’s entry into Canada during the dates inquestion. That application was thwarted when the Department of Justice Canada explained to Mr Pappas’s counsel the futility of thatapplication.

This Court is not ruling on the strength of the Department of Justice Canada’s argument, as that matter is not before thisCourt. The importance of this point is that Mr Pappas did not simply assume that CBSA would not provide the information absent anysuch order. As Lederman says, “At the very least, the party tendering the secondary evidence must show reasonable attempts to locatethe document and request its production”: ibid.

See also R v After Dark Enterprises Ltd (1994), 1994 ABCA 360 , 157 AR 398at para 7, 94 CCC (3d) 574 (CA). [78] Secondary evidence may “vary greatly in its weight and reliability”: R v C (JS), 2013 ABCA 157 at para 16. The weight that

this Court places on the evidence will be determined in the light of the other evidence that the parties have presented to this Court. Aswell, the fact that the source and reliability of the evidence have not been tested through cross-examination will affect its weight. On theother hand, is the fact that the CBSA has no interest in these proceedings and it has represented that the search of Dr Mishark’s travelhistory was done in accordance with its “standard operating procedures” adds to its reliability: R v Smith, (SCC), [1992]2 SCR 915 [Smith] at 930, 932-33.

As well, the fact that CBSA refuses to testify or provide an affidavit points to the necessity of theevidence: Smith at 933-34. The court went on to say the following: Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, anda properly cautioned jury should be able to evaluate the evidence on that basis. Smith at 935. [79] Mr Hunt argued that the probative weight of the secondary evidence outweighs the prejudicial effect on him. Again, this goesto the weight that this Court places on the secondary evidence.

Dr Mishark’s presence in Calgary goes to the very heart of the issuebefore this Court. It is not a collateral issue, from which this Court might draw adverse inferences concerning Mr Hunt, or Dr Mishark,for that matter. [80] This speaks also to the relevance of the secondary evidence. Evidence is prima facie admissible if it is relevant to an issue ofwhich the parties have asked this Court to rule: Phipson at para 2-01.

In R v Cloutier, (SCC), [1979] 2 SCR 709 at 731,48 CCC (2d) 1, the Supreme Court of Canada said the following: For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existenceof one from the existence of the other.

One fact is not relevant to another if it does not have real probative value with respect to the latter... [81] Here the connection or nexus based on the secondary evidence is that this Court could infer that Dr Mishark was not inCalgary on October 17, 2011. [82] As a result of the foregoing, this Court admitted the email and letter from CBSA. It will discuss the weight it gives to thissecondary evidence later in these reasons. [83] Mr Hunt knew that Dr Mishark was a notary public in and for the State of Arizona. In fact, Mr Hunt testified that he hadhelped Dr Mishark in the application process.

Mr Hunt saw Dr Mishark’s notary stamps at Dr Mishark’s home. [84] In the affidavits that he swore on May 15, 2015, and August 25, 2015, respectively, Dr Mishark “unequivocally” states that hewas not in Calgary on October 17, 2011, or around that date.

He also deposes the following: • he neither notarized nor signed the affidavit of execution attached to the Transfer of Land • he was in Rochester, Minnesota on that date attending meetings at the Mayo Clinic, and produced a hotel receipt, car rentalreceipts, restaurant receipts, and boarding passes to prove this, along with the minutes of those meetings that show his presence at thosemeetings • the last time he was in Canada was at a conference in Whistler, British Columbia “approximately ten years ago.” [85] This corresponds with the CBSA email and letter. [86] During questioning, Dr Mishark said that after he was commissioned as a notary public, he decided that he did not want to getinvolved in the purposes for which he applied for the designation, namely, investing in real estate.

He said the following: Shortly after getting the stamp I realized that real estate would be a wonderful way for me to get over my head rapidly, so I decided not topursue it.

Transcript of Dr Mishark’s Questioning, November 20, 2015, p 14, ll 2-4 (emphasis added). [87] It is unclear from this statement whether Dr Mishark was referring to an actual “stamp” or his commission as a notary public.Nonetheless, his appointment as a notary public was effective January 5, 2009, and expired on January 4, 2013, according to a NotaryPublic Bond dated December 4, 2008, which was made an exhibit in these proceedings. [88] Mr Pappas’s counsel attempted to contact Dr Mishark by telephone in August of 2012.

Dr Mishark never returned thetelephone calls, so Mr Pappas’s counsel sent Dr Mishark a letter dated in August 15, 2012. In that letter, Mr Pappas’s counsel requestedthe statutorily mandated information that provides the particulars of the notarial act that Dr Mishark allegedly completed. Again, DrMishark did not respond, so Mr Pappas’s counsel corresponded with the Secretary of State for the State of Arizona on September 14,2012, seeking the assistance of the Secretary of State in having Dr Mishark respond to the various inquiries.

The Secretary of Stateresponded promptly to counsel’s letter and advised that the matter had been referred to the Attorney General’s office for investigation. [89] The Attorney General’s office corresponded with Dr Mishark by letter dated October 24, 2012, with the same inquiries thatMr Pappas’s counsel made. By a letter dated October 29, 2012, Dr Mishark responded to the Attorney General’s office with a very shortletter that stated the following: This letter is written in response to your letter of October 24, 2012. I have called and talked with [Mr Pappas’s counsel’s] office on twooccasions.

I did not notarize any Canadian documents. [90] The Arizona Secretary of State’s office conducted an investigation and decided to revoke Dr Mishark’s commissionimmediately. It advised Dr Mishark of that decision by a letter dated December 27, 2012. It required Dr Mishark to deliver his notary

seal, notarial journals and notarial records to the Arizona Secretary of State’s office. [ 91 ] In a response letter dated January 2, 2013, Dr Mishark advised the Secretary of State that he “never purchased a notary stamp or notarized a document.” He went on to say the following: In regards to the specifics in the letter of complaint, I have not been to Candida ( sic ) in more than 10 years, have no knowledge of a missing seal or journal, and have never notarized a document. [ 92 ] He also advised that he would be “happy to retire the notary commission, which expired with the New Year.” Further steps were then taken, which are not germane to the issue before this Court, with the exception of one step.

The Attorney General’s office, by a letter dated March 1, 2013, required Dr Mishark to make “a police report with local law enforcement regarding your stolen seal.” Dr Mishark made the police report dated April 2, 2013, alleging identity theft. In the report, Dr Mishark again denied that he had a notary stamp and denied that he had ever notarized any documents, including documents in Canada.

He goes on to state the following: Mishark did not know how someone would have obtained a stamp with his information on it and did not give anyone permission to use his personal information. [ 93 ] During questioning on his affidavits, Dr Mishark stated that he ignored Mr Pappas’s counsel’s letters, as he had received threats from Mr Hunt if he did not cooperate and “go along with the whole thing”: Transcript of Questioning, November 20, 2015, p 17, l 19. He denied knowing about the Transfer of Land: Transcript of Questioning, November 20, 2015, p 18, ll 6-9.

He also denied that he ever had a notary stamp: Transcript of Questioning, November 20, 2015, p 26, ll 15-25. [ 94 ] In June of 2014, before being questioned by Mr Hunt’s counsel, Mr Pappas spoke to Dr Mishark. Dr Mishark advised Mr Pappas that he was uncomfortable about the “secret” concerning the notary stamp. He said that he had a notary stamp and that Mr Hunt must have “helped himself” to this stamp during one of his visits to Dr Mishark’s residence. [ 95 ] During questioning, Dr Mishark acknowledged that he had had a telephone conversation with Mr Pappas.

He denied, however, that they discussed anything about Dr Mishark having a notary stamp. Transcript of Questioning, November 20, 2015, p 36, ll 19-25, p 37, ll 1-12. He also denied that he had a conversation with Mr Pappas concerning an allegation that Mr Hunt had taken Dr Mishark’s notary stamp: Transcript of Questioning, November 20, 2015, p 37, ll 14-22.

He also denied that he was ever approached by Mr Hunt concerning a business venture: Transcript of Questioning, November 20, 2015, p 42, ll 11-25, p 43, ll 1-5. [ 96 ] Mr Hunt denies that he took Dr Mishark’s notary stamps and, in fact, Mr Hunt testified that Dr Mishark lied when he said that he did not have a notary stamp. Dr Mishark came to Calgary in 2011 and he attended the Deceased’s apartment on October 17, 2011. Mr Hunt asked Dr Mishark to come to Calgary, as he wanted Dr Mishark to reassure the Deceased during her illness.

Dr Mishark had assisted David’s mother-in-law while she was suffering with cancer, so Mr Hunt felt that Dr Mishark could do the same for the Deceased. As well, he wanted to explore with Dr Mishark the prospects of an online pharmaceutical business that he and Jonathan were exploring. [ 97 ] Mr Hunt, David, and Mr Bay all testified that Dr Mishark was at the Deceased’s apartment on October 17, 2011. Mr Hunt testified that the whole reason Dr Mishark was coming to Calgary was to comfort the Deceased.

None of those witnesses testified to the fact that Dr Mishark discussed the Deceased’s condition with her, or provided her with words of comfort or encouragement. It was all business. Furthermore, if Dr Mishark was there to comfort the Deceased, why did he have his notary stamp with him? It is hard to believe that a physician from the Mayo Clinic would carry around his notary stamp. Nonetheless, Mr Hunt testified that he had a “lightbulb moment,” meaning that he remembered that Dr Mishark was a notary public. That was when he asked David to prepare the Transfer of Land and bring it to the apartment.

During his questioning, Mr Hunt testified that he had not asked Dr Mishark to bring his notary stamp with him. In fact, he testified that he expressed surprise when Dr Mishark produced his notary stamp. But was that not the whole reason why Mr Hunt had gathered the group together?

As for the reason why no one heard Dr Mishark express words of comfort to the Deceased, Mr Hunt testified that the Deceased was gaining solace simply by having Dr Mishark in the room. [ 98 ] When one looks closely at the notary stamp that Dr Mishark allegedly affixed to the Transfer of Land, it provides his name, the fact that he is a notary public in Maricopa County in Arizona and contains the seal of the State of Arizona.

It also provides the following: My Commission Expires August 13, 2013 [ 99 ] There is nothing in any of the materials the parties submitted as part these proceedings that indicates Dr Mishark’s commission expiring on August 13, 2013. In fact, the materials that were entered as exhibits in these proceedings indicate that Dr Mishark’s commission expired on January 4, 2013. B. Harrison Hunt [ 100 ] Mr Hunt’s testimony concerning his use of the appellation “Dr” was not convincing.

He testified that he used it as a nickname and the appellation was an abbreviation for “directeur,” which he picked up while studying in France. Actually the abbreviation for “directeur” is “Dir,” not “Dr.” The abbreviation for “docteur” is “Dr.” Be that as it may, this was Mr Hunt’s testimony. [ 101 ] But he went further. During cross-examination, Mr Hunt testified that this was not the only time he used the appellation “Dr.” He had applied for a credit card with it, and had used the credit card. He has also used it in other contexts.

In particular, he used it in a letter to the insurance adjuster when providing a summation of the flood that occurred in the House. He was not able to make the claim, as he was not shown as an “insured.” The Deceased was shown as the “insured.” Mr Hunt testified that he was “distraught” when he sent the letter. Although he was not the “insured,” he said that he was not trying to mislead the adjuster. He further testified that because he is

a recluse, he does not use this appellation to try to mislead people. [ 102 ] There was, however, a further email to the insurance adjuster that is electronically signed “Harrison Hunt PhD.” He sent this email to the adjuster. Mr Hunt testified that this electronic signature is auto-appended to any emails he sent at that time.

He testified that David had prepared this signature block for him, as David assumed he had a PhD, because of mail that had been wrongly delivered to David’s house which showed the appellation “Dr.” Coincidently, David also testified to this fact. [ 103 ] Although Mr Hunt testified that David used the appellation “PhD” as a joke, there was a letter that had apparently been sent to the then Minister of Energy that Mr Hunt had penned, which referred to him having a “PhD.” He testified that this letter was sent to the Minister of Energy at David’s behest. [ 104 ] This behaviour causes this Court to question Mr Hunt’s credibility and integrity.

But it gets worse. Many times throughout his testimony, when Mr Hunt was confronted with contradictions, apparent misrepresentations, or questionable behaviour, Mr Hunt’s response was that he did not remember, he was a recluse who had no idea how to deal with the outside world, others prepared documents without his consent or knowledge, he was on medication, or others told him to prepare documents for them. This Court found that in many instances, Mr Hunt had a convenient memory. He did not take responsibility. [ 105 ] For example, he testified that he was present on the morning that the Deceased injured her arm.

Mr Johnston said that he was the only person there and he summoned the nurse to put dressing on the Deceased’s arm. Furthermore, although Mr Hunt stayed at the Deceased apartment on a couple of occasions during the time that Mr Johnston prepared his diary, there were only two times that Mr Hunt came to her apartment before 10:30 a.m. As well, during cross-examination, Mr Hunt could not tie the day of the Deceased’s injury to the signing of the Transfer of Land.

In fact, although the Transfer of Land is dated October 17, 2011, and the other witnesses testified that this was the date on which they met at the Deceased’s apartment, during cross-examination, Mr Hunt said it could have been a different date. [ 106 ] This Court has no doubt that Mr Hunt has a very “convenient memory” until questioned about it. C. David Conquergood and Poul Bay [ 107 ] David operated an oil and gas software development entity called the “Daily Driller.” He had a partner that “burned” him, so the Daily Driller became inoperative in 2011. David continues in that business.

He works out of his house, but he maintains an office in downtown Calgary. He mainly works in-house for oil and gas companies. [ 108 ] David confirmed that he had seen the insurance adjuster who was investigating the flood that occurred in the House. The insurance adjuster needed someone to confirm that Mr Hunt was living in the House, and that he was not a “snowbird” who lived in Florida during the winters. David wrote a letter to the adjuster dated January 18, 2011, in which he advised, among other things, that the Daily Driller employed Mr Hunt as a COO, which this Court assumes is the chief operating officer.

This was not true, as Daily Driller never employed Mr Hunt. As well, the letter said that Mr Hunt has been so employed for 5 years. Again, this is not true. [ 109 ] David then wrote a second letter dated January 21, 2011, which expanded on the earlier letter.

He confirmed, among other things that Mr Hunt’s employment with Daily Driller was in Canada, and not outside, and that Mr Hunt has “not travelled outside of Canada on Business in the past (3) years.” It then continues with the role that Mr Hunt plays in the Daily Driller, and how and when he and David discuss the business, such as when they walked home together. All of these representations to the insurance adjuster were lies.

When asked how he might be able to justify this, David said that Mr Hunt was one of his mentors, and that everyone is a mentor when one is working as a sole proprietor. [ 110 ] Daily Driller only had one employee, David. David would occasionally take Mr Hunt to business meetings with him to give potential clients the impression that Daily Driller was a much more extensive business than it was.

As David said, his potential clients, “Won’t risk business with a sole proprietor.” [ 111 ] As for the email signature page that showed Mr Hunt as having a “PhD,” David testified that he created this as an “inside joke,” because he saw Mr Hunt as a recluse philosopher. Like Mr Hunt, David testified that he might have gotten the impression that Mr Hunt had a doctorate when he wrongly received mail addressed to Mr Hunt. He was also aware of a letter that was sent to the Minister of Energy that misrepresented Mr Hunt as holding a PhD.

If this was a joke, it was used in an official capacity and intended to mislead the government. [ 112 ] Whenever he had conversations with the Deceased concerning the House, she would always refer to it as Mr Hunt’s house. David recalls having a conversation with her in which she was upset that the House was registered incorrectly. This conversation occurred in June of 2011. [ 113 ] When David was shown the Transfer of Land, he confirmed that he “created” it in that he downloaded it from the Alberta Land Titles Office website and filled in the typed sections.

Mr Hunt allegedly called his office on the morning of October 17, 2011, and gave David the information that would allow him to complete the form. He then printed it out and took it to the Deceased’s apartment. [ 114 ] Mr Pappas’s counsel was seeking sworn statements from other witnesses in these proceedings, and had requested them of Mr Hunt’s former counsel. Mr Pappas’s counsel never received sworn statements. He did, however, receive “statements” purportedly prepared by David and Mr Bay, which were contained in an email from Mr Hunt’s former counsel to Mr Pappas’s counsel.

Mr Hunt believes he sent these to his former counsel. Mr Hunt does not recall how he received these from Mr Bay and David, but he thought David left a flash drive in his mailbox. [ 115 ] David confirmed that the “statement” contained his words. Similarly, Mr Bay testified that his “statement” contained his words. David thought that Mr Hunt’s former counsel might have “transcribed” them. He could not recall how this message was sent to Mr Hunt’s former counsel. It might have been on a memory stick, or he might have emailed it to the lawyer. He did testify that he and Mr

Bay typed their messages together. Mr Bay, on the other hand, testified that he wrote his statement at his home, and then delivered it to David. He possibly handwrote it and then David typed it. He suspects that he gave the note to David, who passed it on to the lawyer. David does not recall being asked for an affidavit. He thought that Mr Pappas’s counsel was looking for a sworn statement, but he thought this was enough. [ 116 ] This Court’s biggest concern with David’s testimony involves the letters he penned to the insurance adjuster, in which he misrepresented many of the facts contained in those letters.

Although he attempted to justify those misrepresentations to make them appear that they were true, they went beyond half-truths to the point of outright misrepresentations. [ 117 ] The whole discussion about using the appellation “Dr” was distasteful. Trying to pass it off as a “joke” when representations were being made to government officials is not a joke.

As well, his attempts to present Mr Hunt as an executive of his company was, again, a misrepresentation, which causes one to question David’s business ethics. [ 118 ] His awkward attempt to justify the Deceased’s signature as not being her normal signature by saying that he “jogged” the table as she was signing was a very weak attempt. [ 119 ] During cross-examination, David denied talking to Mr Hunt about the testimony that Mr Hunt had given the day before, despite their obvious similarities in phraseology. [ 120 ] Mr Bay said that beyond the meeting that he, David and Mr Hunt had at Starbuck’s, which this Court will discuss later in these reasons, he has neither seen nor talked to Mr Hunt. [ 121 ] Both Mr Bay and David knew they would likely have to testify in any trial involving the Transfer of Land.

Mr Hunt also testified that he had not spoken to David or Mr Bay about their testimony. Later, he did concede that he had spoken to David about the testimony he had given, but did not ask David what David’s testimony will be. D. Jonathan Conquergood [ 122 ] The interesting thing about Jonathan’s testimony was that it was very “cloak and dagger.” Both he and Mr Hunt said that they were very cautious about exchanging information and involving Dr Mishark in those communications, because the American government and regulators were investigating these types of businesses.

They were concerned about having their communications intercepted by the American agencies. Accordingly, Jonathan felt it would be “uncouth” to ask Dr Mishark about his comings and goings. [ 123 ] The other thing that was interesting about Jonathan’s evidence is that he was certain that his meeting with Dr Mishark happened on October 15, 2011, and he made a note of it on a business card that he presented to this Court. He is the only one who refers to this date. E. Sheila Parisien [ 124 ] Ms Parisien was very forthright in her testimony.

She confirmed the meeting that took place at the Deceased’s apartment in September of 2011, that Mr Johnston had overheard. Ms Parisien asked the Deceased whether the Deceased wanted the House to go to Mr Hunt, and the Deceased said “yes,” because it is his house. [ 125 ] By about 3 or 4 weeks before the Deceased died, they stopped talking about the House. Ms Parisien stopped raising it because “it was not her business.” [ 126 ] As well, until she spoke to Mr Hunt’s lawyer, Ms Parisien was convinced that the signature on the Transfer of Land was not that of the Deceased.

Without knowing, this Court assumes that Mr Hunt’s lawyer told her that there are other witnesses who will testify that they saw the Deceased sign the Transfer of Land. Whether that, indeed, happened is up to this Court to decide. It accepts Ms Parisien’s concern that it was not the Deceased’s signature. F. Dan Johnston [ 127 ] Like Ms Parisien, this Court finds Mr Johnston’s testimony compelling. He had a diary to back up his testimony, and although the parties did not refer to all portions of Mr Johnston’s diary, it is instructive as to what he and others did, and when they did it. G.

The Purported Transfer and the Note [ 128 ] The Purported Transfer and the Note were not produced to Mr Pappas’s counsel until the eve of the trial. Mr Hunt had apparently forgotten about them, or, more accurately, did not want to think about the other documents that were contained in the folder that contained the Purported Transfer and the Note.

He also was very distressed about the contents of the folder, as it contained instructions that the Deceased wanted to be carried out if she became gravely ill, including medicines and dosages. [ 129 ] Mr Hunt showed the Purported Transfer and the Note to David just before he gave them to his counsel. He did not know who witnessed the Deceased’s signature, so he asked David. David suggested that they meet with Mr Bay to ask whether he knew whose signature was on the Purported Transfer. They met at a Starbucks, and he asked Mr Bay about the witness signature.

When Mr Bay said it was his signature, this is when Mr Hunt recalled what had happened. [ 130 ] When he first found the folder that contained the Purported Transfer and the Note, he did not want to open it. Ms Parisien opened the folder, although she did not apparently see the Purported Transfer or the Note.

[ 131 ] This Court has a concern with the lateness within which Mr Hunt produced these documents. For one thing, Mr Hunt seems to have a very sharp memory when it comes to the minute details of some of his evidence. How is it that he forgot about these very important documents, and the individuals who were present when they were signed? [ 132 ] Of course, this Court is not ruling on the authenticity of the Purported Transfer and the Note, or the date on which they were purportedly executed.

The Note could be considered a codicil to the Deceased’s Will, and had Mr Hunt produced it earlier in the process that led to this trial, this trial might have related to the Note’s authenticity, rather than the validity of the Transfer of Land. In fact, the Transfer of Land might not have been an issue at all. However, because a thorough examination of the Note, its execution and authenticity has not been undertaken, including the authenticity of the Deceased’s signature, this Court cannot, and will not rule on those issues. That will be left to another day. VI.

Conclusion [ 133 ] It is worthwhile to consider the standard of proof that this Court must apply in this case. There can be no doubt that an allegation of forgery is very serious, as it carries “a moral stigma that will continue to have an impact on the individual after the completion of the civil case”: C(

R) v McDougall , 2008 SCC 53 , [2008] 3 SCR 41 [ McDougall ] at para 26 , quoting LR Rothstein, RA Centa & E Adams, in "Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof” in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2003) 455 at 456. The court went on to say the following: ... [I]n Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.

Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. ... In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred. ... [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. McDougall at paras 40, 44 & 49 . [ 134 ] Mr Hunt testified that the Deceased almost always referred to the House as “his” house, and would even ask his permission to stay at “his” house. He produced emails attesting to this fact. As well, Ms Parisien and Mr Johnston provided this Court with evidence that the Deceased had articulated her intention to them that Mr Hunt should have the House.

From the evidence that the parties have presented to this Court, this Court is satisfied on a balance of probabilities that the Deceased had intended Mr Hunt to have the House. [ 135 ] That, however, is not the issue before this Court. Whatever her intent, did the Deceased fulfill her intention by signing the Transfer of Land? If she did not, no matter what her intention, the Transfer of Land cannot stand, and the House will fall into the residue of her estate. [ 136 ] The evidence of Mr Purdy is convincing.

But for other evidence, however, this Court would not be convinced on a balance of probabilities based on Mr Purdy’s evidence alone that the signature on the Transfer of Land is not the Deceased’s signature. Why? He did not take into consideration the physical condition of the Deceased at the time she allegedly signed the Transfer of Land. Even though he testified that he would have come to the same conclusion that he reached had he considered the Deceased’s physical condition, his failure to do so in the Report weakens its strength. On the other hand, no one told him of the injury to her arm.

Would this have changed his report? We do not know. [ 137 ] Mr Purdy’s expert conclusion, however, is fortified by Ms Parisien, a lay person who was familiar with the Deceased’s handwriting and her signature. [ 138 ] Dr Mishark’s evidence is convincing. He testified under oath that he was not in Calgary on or about October 17, 2011, and provides evidence that corroborates his testimony in the form of boarding passes, car rental and restaurant receipts, hotel receipts, and the minutes of the meetings he attended in Rochester, Minnesota.

The only weakness in his testimony is the conversation he had with Mr Pappas about his “secret” notary stamp. This was against Mr Pappas’s interest, so this evidence carries some weight. However, this one bit of evidence must be weighed against the balance of the evidence. Besides, no one asked why he had kept this “secret.” [ 139 ] This Court is satisfied that it is more likely than not that Dr Mishark was not in Calgary on or about October 17, 2011. That means that he could not have attended at the Deceased’s apartment to sign the affidavit of execution.

Dr Mishark’s testimony alone does not convince this Court on a balance of probabilities. It is the other evidence that helps it arrive at this conclusion. [ 140 ] The other witnesses who allegedly attended at the Deceased residence were vague about Dr Mishark’s comings and goings. Why? It only seems sensible that educated polite people would welcome a visitor and try to learn something about his unannounced attendance many miles from his home. No one knew how or when he arrived, or how or when he was leaving.

Jonathan though it would be “uncouth” to ask such a question, and his evidence was particularly vague and had more of the ring of a cold war spy movie than a meeting to discuss a legitimate business opportunity. [ 141 ] Dr Mishark’s friend, Mr Hunt, had asked him to attend on the Deceased to comfort her. Mr Hunt, however, knew nothing about Dr Mishark’s arrival or departure plans. Furthermore, there was no evidence that Dr Mishark fulfilled his intended purpose of coming to Canada in the first place, which was to comfort the Deceased in her time of need. It was all business. This is simply not believable.

[ 142 ] The notary stamp that he apparently affixed to the affidavit of execution does not even have his correct commission expiry date. It is off by 7 months. [ 143 ] The CBSA materials simply confirm the foregoing information. [ 144 ] Neither Ms Parisien nor Mr Johnston, with whom the Deceased confided, was aware that the meeting on October 17, 2011, even took place.

Surely, because both were trying to convince the Deceased that she should fulfill her intention of having the House transferred into Mr Hunt’s name, the Deceased would have somehow assuaged their concerns by telling them that she had completed the transfer. She told neither of them. As importantly, Mr Hunt did not tell them that this meeting took place. He knew that they were aware of the Deceased’s intentions. Why did he not tell them of the meeting? [ 145 ] The evidence of Mr Hunt and David is simply not believable to any extent.

Mr Bay’s testimony was somewhat more sincere, but this Court’s view is that to a certain extent it too was contrived. Jonathan’s testimony was somewhat more convincing, but the “cloak and dagger” nature of it made it seem almost laughable. [ 146 ] Having reviewed all the evidence that the parties have presented to it, this Court is satisfied that it is more likely than not that the Deceased’s signature on the Transfer of Land is not her signature. The Plaintiff Thomas Pappas, executor of the will of the Deceased has met his burden. Heard on the 7 th , 8 th , 9 th , 10 th and 11 th days of March, 2016.

Dated at the City of Calgary, Alberta this 8 th day of April, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: Brian W Summers and Nicholas Williams Dentons Canada LLP for the Plaintiff Sean T Fitzgerald Miles Davison LLP for the Defendant