2016 QCCA 1381, 2016 QCCA 1381

Gidney c. Lemieux 2016 QCCA 1381 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024973-158 (500-14-041781-121) MINUTES OF THE HEARING DATE: September 2, 2016 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. MARTIN VAUCLAIR , J.A. ÉTIENNE PARENT , J.A. In the matter of the estate of the late Anne Gidney Lawson : APPELLANT COUNSEL ELIZABETH GIDNEY Mtre STEVEN MARK KMEC (absent) RESPONDENT COUNSEL CATHERINE LEMIEUX Mtre VANESSA GREGORIO (absent) Mtre Fredric Stewart Liverman ( absent ) ( Cabinet Gelber Liverman )

On appeal from a judgment rendered on November 21, 2014 by the Honourable Madam Justice Pepita G. Capriolo of the Superior Court, District of Montreal. Application in the course of a proceeding for permission to adduce indispensable new evidence. (Article 380 C.C.P .) Application to amend proceedings and for permission de bene esse for leave to appeal nunc pro tunc. (Articles 49, 206 and 378 C.C.P .) DESCRIPTION : Will – validity – probate – testamentary capacity – undue influence. Clerks: Marcelle Desmarais, Sylvie Hébert Courtroom: Antonio-Lamer HEARING 9:30 Continuation of the hearing August 31, 2016. Judgment – see page 4. Marcelle Desmarais, Sylvie Hébert Clerks BY THE COURT

JUDGMENT [ 1 ] Elizabeth Gidney has inscribed in appeal a judgment of the Superior Court, District of Montreal, the Honourable Madam Justice Pepita G. Capriolo, rendered on November 21, 2014, which granted Catherine Lemieux’s motion for probate of the will of the late Anne Gidney Lawson.

In the Superior Court, appellant had filed a proceeding entitled “Declaration in Voluntary Intervention (Article 209 and following of the Code of Civil Procedure )” asking that the respondent’s motion for probate be dismissed by reason of the deceased’s lack of capacity to make a will and, in the alternative, on the grounds of undue influence. [ 2 ] After a three and one-half day trial in which conflicting evidence was adduced on both issues, the trial judge concluded that the deceased had testamentary capacity at the time she made the will and that there was no proof that the persons benefitting under the will had obtained an advantage as a result of undue influence. [ 3 ] In addition to arguments relating to errors the judge is said to have made on both testamentary capacity and undue influence, appellant has filed a motion to adduce new evidence in support of her appeal.

A preliminary question of the Court’s jurisdiction to decide this appeal from a judgment granting probate must also be addressed. I Right of Appeal [ 4 ] Prior to the hearing, the Court wrote the parties asking them to address the matter of the jurisdictional basis of the appeal.

Having noted that the appeal is from a judgment granting a motion for probate, and that appellant had inscribed the judgment in appeal rather than petitioned for leave, members of the panel sought representations from the parties as to whether the appeal was properly brought before the Court. [1] [ 5 ] As a precautionary measure, appellant filed a motion de bene esse for leave to appeal nunc pro tunc prior to the hearing.

She also presented a verbal motion to amend the inscription in appeal in order to reflect the fact that she seeks a declaration from this Court that the will was null by reason of lack of testamentary capacity or undue influence. This latter motion was uncontested. [ 6 ] Having considered the unusual manner in which issues were joined in the Superior Court and the tenor of the findings by the trial judge, the Court is of the view that the judgment in the nature of a decision rejecting an action for the nullity of a will for want of testamentary capacity.

As such, it is subject to appeal without leave. [ 7 ] Ordinarily, a motion for probate only decides matters relating to the formal validity of a will and not questions of substantive validity, such as testamentary capacity and undue influence. But in this case, matters relating to probate, strictly speaking, were not at issue before the trial judge.

Despite some of the language used in her proceedings relating to “formalities”, appellant did not contest the identity of the testatrix, the fact of her death, or adherence to the requirements for form but limited herself to arguments relating to the will’s substantive validity. Moreover, both parties agree that the nature of the dispute in the Superior Court was exclusively concerned with capacity and undue influence and did not relate to questions connected to probate, stricto sensu .

Comments made by the judge over the course of the trial suggest clearly that she considered the matter before her to be one relating to the substantive, and not formal, validity of the will. [ 8 ] It is regrettable that the incongruity of arguing substantive validity of the will in response to a motion for probate was not raised in first instance by the parties or by the judge.

The consequences can be serious: errors of this sort can limit a right of appeal to matters of formal validity and consign other findings of a trial judge to the status of obiter dicta . [2] This Court has had occasion elsewhere to observe that proceedings for probate of a will are not properly a setting in which substantive matters relating to the validity such as testamentary capacity are decided. It would appear, however that, like in Larocque v.

Gagnon , [3] the parties implicitly agreed that the nature of the dispute was not “probate/vérification”, as that term is understood in Quebec law. [4] While the incongruity should have been raised, the judge treated the matter as one of substantial validity. Like in Larocque , the matter at issue was not formal validity of the will here, but only capacity and undue influence.

In this exceptional circumstance, and for the same reasons given in Larocque , the appeal shall be treated as properly brought before the Court. [5] [ 9 ] Accordingly, the motion for leave de bene esse shall be dismissed as unnecessary and appellant’s motion to amend the inscription in appeal to reflect the true nature of the debate at trial shall be granted, both without costs.

II Motion to Adduce New Evidence [ 10 ] Appellant seeks to introduce new evidence on appeal which, she says, demonstrates that the deceased was not taking anti- psychotic medication at the time of the making of the will. [ 11 ] The proposed new evidence includes written statements sent by the Manulife Financial insurance company, printed on August 21, 2015, recording the prescription drug claims for the deceased from January 2010 to September 2012.

Appellant also seeks to adduce a written declaration, dated July 15, 2016, from a pharmacist setting out the names of the drugs on the Manulife statement and their active ingredients. She also seeks to introduce a letter, dated July 25, 2016, from Dr Louis Morissette, an expert who testified at her request at trial. That letter states that none of the drugs mentioned in the Manulife statements are used to treat the deceased’s psychiatric conditions. [ 12 ] The deceased suffered from certain psychiatric conditions for which anti-psychotic medication was prescribed as treatment.

The trial judge heard evidence from James Lawson, the deceased’s husband, as to whether she had been properly medicated at the time of making of the will on October 20, 2011. On this point, the trial judge wrote: “Mr. Lawson testified, quite clearly, that she was taking anti-psychotic medication at the time and that, therefore, she was competent [to make the disputed will]” (para. [8]).

[ 13 ] In her appeal, appellant argues that the judge erred on this point. She says Mr. Lawson did not name an anti-psychotic drug and that the judge misinterpreted his testimony. Appellant further points to expert evidence before the judge that suggested that if the deceased had not been taking anti-psychotic drugs at the time, she would have suffered from delusions that would have deprived her of testamentary capacity, thereby impugning the validity of the will. [ 14 ] Should permission be granted to adduce this new evidence on appeal? [ 15 ] It should not. The motion should be dismissed. [ 16 ] The rules relating to the production of new evidence are well known. Both under

article 509 of the former Code of Civil Procedure and the

article 380 of the new law, the evidence must, at a minimum, be truly “new” evidence and it must be “indispensable”. It is generally said, as well, that the production of the evidence on appeal must be shown to be required in the interest of justice. [6] [ 17 ] The proposed evidence does not meet these requirements. [ 18 ] First, the evidence is not, strictly speaking, “new” evidence in that it was available at the time of the trial. [7] The Manulife records for prescription drug claims made between 2010 and 2012 existed before the trial.

It is not enough for appellant to say that she had no knowledge of their existence to justify their status as new evidence. She must show that she had been reasonably diligent and nevertheless unable to secure the evidence. [8] Had appellant been diligent, she could have discovered this information from Mr. Lawson prior to the trial. As it happens, she waited until after the judgment to contact him and, upon learning of his death, obtained the information through his former employer and the insurance company. Not only is the evidence not new, but adducing it at this stage, after Mr.

Lawson’s death, would deprive the respondent of the opportunity to examine the deceased’s husband in order to determine whether the reimbursement claims for the medication in question were or were not made. [ 19 ] Second, the evidence is not “indispensable” as that concept has been considered in the decided cases. [9] Appellant argues in her motion that as a result of this evidence from the insurance company, “it is now clear and without a doubt that during the period of September 2010 to September 2012, Anne Robin Lawson was not taking anti-psychotic medication at the time of the signing of the will, namely, on October 20, 2011, Anne Robin Lawson did not have the capacity in law to sign the will” (para. 23).

In making this assertion, appellant wrongly assumes that any and all medication taken by the deceased would have been recorded on the insurance claims. This is not necessarily the case. Had the evidence been before the trial judge, it would likely not have brought about a different result. [ 20 ] Indeed, the evidence at trial indicated that the deceased ordered medication on the internet at low cost and had it delivered to her home by mail.

And in any event, there was evidence from different sources, based on her behaviour at the time, indicating that the deceased was taking the anti-psychotic medication, including the fact that she did not show signs of a relapse of psychosis. It may further be recalled that the attorney who attended to the preparation of the will and his assistant gave evidence that the deceased seemed normal at the time she made the will in October 2011, again suggesting that she had access to anti-psychotic drugs, even if she did not claim reimbursement from the insurance company.

In other words, notwithstanding the proposed new evidence, the proof at trial does suggest that the deceased was taking the relevant medication. The new evidence would not have affected the outcome of the case, in that it does not prove the contrary, much less that the deceased was incapable of making a will. *** III Substance of the Appeal [ 21 ] Appellant raises various grounds of appeal that may be summarized in five questions, treated in turn here.

III.A Did the judge err in respect of the burden of proof for showing testamentary capacity? [ 22 ] Appellant submits that the trial judge erred in law by failing to apply the reversal of burden of proof applicable in matters of testamentary capacity as that burden is explained in the judgment of this Court in Bertrand v. Opération Enfant Soleil . [10] As a result, the judge is said to have ignored the prima facie evidence of testamentary incapacity adduced by appellant.

This should have prompted a shift in the burden of proof to the respondent, as the party propounding the will, to prove capacity at the time of the will.

Had she properly applied the burden of proof, says appellant, the judge would have found that respondent had failed to dispel the prima facie evidence of incapacity and been unable to show that the deceased made a valid will. [ 23 ] This ground of appeal is rejected. [ 24 ] Appellant is correct to assert that the jurisprudence in this Court, in Opération Enfant Soleil and in more recent cases, [11] dictates that the burden of proof shifts from the person alleging testamentary incapacity to the person propounding the will when the former raises a serious doubt as to capacity by prima facie evidence.

While the trial judge did cite Operation Enfant Soleil to other ends, it is true that she did not explicitly reference the rule on the shift in burden of proof. [ 25 ] The judge might have been more explicit in her presentation of the law on this point, [12] but it is not plain that she erred in law or that, if she did, this error had any meaningful impact on the outcome of the case. [ 26 ] What is plain from the judge’s reasons is that, as a matter of fact, she found that the deceased was capable of making a will on October 20, 2011.

The assignment of the burden of proof, at the end of the day, was not the decisive factor in this case. It is possible that the judge rejected appellant’s arguments as a failure to raise prima facie of incapacity. It is also possible, as the judge noted in paragraph [3] of her reasons, that she decided that the deceased was someone with an illness that could affect capacity but that she had made a valid will in a lucid moment. Either way, the judge was unequivocal in concluding, based on the whole of the evidence, that testamentary capacity at the time of the will was established to her satisfaction.

In order to reverse this finding of fact, appellant must, as noted below, show that the judge committed a palpable and overriding error. III.B Did the judge err in law in her identification of the criteria relevant to the testamentary capacity of the deceased?

[ 27 ] Appellant submits that the judge wrongly cited

article 709 C.C.Q. – a rule pertaining to wills made by persons subject to tutorship – in her consideration of whether the deceased had testamentary capacity. This mistake is said to have led her to focus inappropriately on the content of the will rather than on whether the deceased understood the nature and consequences of the testamentary act in dispute. [ 28 ] The judge is also said to have erred by misapplying the law relating to the point in time relevant to the measure of testamentary capacity. [ 29 ] The judge made no such errors. This ground of appeal is rejected. [ 30 ] First, the judge explicitly cited

article 709 C.C.Q. by analogy only. Her decision to consider the reasonableness of the provisions of the impugned will as part of the exercise of determining capacity was not mistaken.

Scholars commenting on the rules relating to the contestation of testamentary capacity before the courts have observed that judges often consider whether the provisions of a will are rational in light of a testator’s circumstances as one factor among others indicating whether or not he or she understood the nature and consequences of making a will. [13] When the judge wrote that the will was “logical and plausible”, she was rightly within the range of considerations relevant to the determination of capacity.

Appellant is wrong to say that the judge’s turn of phrase in paragraph [18] (“To determine whether the will is valid, one must ask: ‘Is it logical and plausible in these circumstances’ […]”) reflects a misunderstanding of the law. Taking her reasons as a whole, it is plain that the judge is concerned with capacity as measured by the presence of a sound and disposing mind. As respondent notes, the judge considered the reasonable character of the will as one tool among others useful for this task.

No error has been shown. [ 31 ] Appellant is also mistaken to say that the judge misapplied the rules on the temporal measure of testamentary capacity. She was right to devote particular attention to the circumstances relevant to capacity at the time the will was made, based on

article 707 C.C.Q. When read as a whole, the judge’s reasons do not suggest that she wrongly discounted aspects of the deceased’s circumstances earlier in time as irrelevant to testamentary capacity. She simply chose to see more recent events as dispositive. No reviewable error has been shown.

III.C Did the judge err in concluding that the deceased was capable at the time she made the will? [ 32 ] Appellant submits that the judge erred in fact when she found the deceased to be capable at the time the will was made in 2011, thereby wrongly setting aside evidence of the deceased’s chronic history of psychiatric illness, her disinclination to take anti-psychotic drugs and what the appellant describes as the deceased’s delusional animosity for her sister. [ 33 ] Mindful that she must show a palpable and overriding error made by the judge in order to have the judgment set aside on this point, appellant identifies three supposed mistakes in the judgment: first, the judge allegedly ignored evidence that the deceased’s animosity for appellant was rooted in delusions stemming from her psychiatric condition; second, that the judge allegedly erred in finding that Mr.

Lawson said the deceased was taking anti-psychotic medication; and, third, that the judge erred by discounting the evidence given by appellant’s expert Morissette based on the mistaken notion that he had changed his testimony. [ 34 ] This ground of appeal is also rejected. [ 35 ] In respect of these three points, as elsewhere in the judgment, appellant has failed to show a palpable and overriding error within the degree of precision required by the jurisprudence. [14] [ 36 ] Firstly, the evidence adduced at trial substantiates the judge’s finding that the relationship between the deceased and appellant was strained for many years.

The judge did not accept appellant’s position that the sisters had been close until the deceased’s delusions were said to have taken hold. There was indeed evidence that the family business was a longstanding source of discord between them and that financial disputes following the death of their parents were also the cause of animosity. It may be that this animosity was exacerbated by the deceased’s psychiatric condition but the judge considered this and rejected the idea that delusions were connected to the deceased’s choice of legatees.

Importantly, there was evidence to indicate that even when the deceased was medicated, she still felt animosity towards her sister, suggesting that the dislike was not rooted in psychosis. [ 37 ] As to the judge’s supposed error concerning Mr. Lawson’s testimony, it is true that he did not explicitly state by its correct name the anti-psychotic drug he said was taken by the deceased. The judge was not however mistaken to write that, considering the whole of the husband’s testimony, Mr. Lawson clearly stated that the medication she took had a positive impact on her and stemmed any irrational (or as Mr.

Lawson called it “foolish”) behaviour. As noted by expert Dr Meterissian, Mr. Lawson may have used the wrong name for the drug, but this is not material to the outcome of the case. That expert provided evidence that during this period the deceased appeared to be responding well to treatment. The judge was entitled to accept Mr.

Lawson’s testimony that during approximately two years of cohabitation he ensured that she did not fail to take her medication and that during this period she was largely well. [ 38 ] Thirdly, appellant has not shown the judge’s comment, at paragraph [19] of her reasons, to the effect that “Dr. Morissette’s opinion changed considerably during the course of his testimony in Court” reflects a reviewable error. Expert Morissette noted that his report was based on the assumption that the deceased was delusional about her sister because she was ill and not taking proper medication.

He did acknowledge that if she were found to be taking anti-psychotic drugs, his opinion might have been different and that there was a possibility that the drug she was taking was such medication. The judge’s characterization of his evidence as “changing” has not shown to be wrong, much less the source of an overriding error in respect of the finding of testamentary capacity. [ 39 ] It bears mentioning that the judge’s conclusion that the deceased was capable at the time of the making of the will rested in part on evidence given by her attorney, Mr. Boyle, who prepared the will, and his assistant.

Here again, the judge’s finding of fact that this evidence was reliable has not been shown to be wrong. As noted above, whether taken as proof of execution of the will during a moment of lucidity or, more generally, of an absence of even prima facie proof of incapacity is unimportant. These witnesses met with the deceased at the critical moment of the making of the will and found she was acting normally; Dr Morissette, as he himself acknowledged, never met the deceased.

[ 40 ] All arguments made by appellant on this point are rejected. III.D Did the judge err in finding that the deceased was not subject to undue influence? [ 41 ] Appellant argues that the judge erred in rejecting her alternative argument that the deceased, even if technically capable of making a will, was so vulnerable because of her psychiatric condition that she was ripe for manipulation.

She says that the deceased’s consent to the will was vitiated by reason of undue influence exercised by the respondent through “implied manipulation” achieved, it would seem, by currying favour with her. [ 42 ] This argument is unfounded. [ 43 ] A will can be annulled where a person alleging undue influence shows fraud that induced the testator to dispose of property in a manner that he or she would not have otherwise done. [15] Appellant brings no serious argument that the deceased was subject to fraudulent manoeuvres, and none whatsoever that blameworthy conduct of this sort caused her to dispose of her property as she did.

III.E Did the judge’s conduct deprive appellant of a fair and impartial trial? [ 44 ] Appellant submits that the judge’s repeated interventions at the hearing were a sign of bias and of procedural unfairness. She alleges that the judge impeded her from bringing evidence of the deceased’s condition for various moments prior to 2011. The judge is also said to have failed in her duty, pursuant to former

article 292 C.C.P., to draw gaps in the evidence to the attention of the parties, especially considering that appellant appeared for much of the proceedings in first instance without a lawyer. [ 45 ] This argument is rejected. [ 46 ] It is fair to say that the judge intervened regularly during the hearing. She was active, in particular, in questioning appellant’s expert Morissette. But it has not been shown that she did so in an inappropriate manner. As this Court decided in F.A . v.

M.S ., [16] the judge was entitled to ask those questions she felt useful. [ 47 ] Alleging bias or unfairness on the part of a judge is a grave matter and such allegations should not be made lightly, especially by counsel. Nothing raised by appellant remotely suggests that the judge acted unfairly towards appellant. [ 48 ] Appellant has not established that the judge overstepped her role as impartial arbiter to become, to quote her written argument, “a party to the proceeding”. Appellant has pointed to no facts that would reverse the strong presumption of judicial impartiality recognized by the courts.

As my colleague Bich, J.A. noted in a recent case, “ La conduite examinée doit engendrer une crainte raisonnable de partialité, c'est-à-dire une crainte logique et sérieuse, qui serait celle d'une personne sensée et bien renseignée (et non pas frileuse, tatillonne ou elle-même préjugée), qui étudierait la question en profondeur, de façon réaliste et pratique ”. [17] While another judge might have chosen to intervene at different times or even less frequently, it cannot be said that a reasonable person, apprised of the circumstances, would fear bias here. [ 49 ] Given the importance of ensuring an orderly progression at trial and adherence to the principle of proportionality, the judge was entitled to insist that the parties respect timetables and take measures so that the proceedings moved forward with reasonable dispatch.

The fact that appellant was self-represented is not material in this respect. This Court’s comment in Wo ng v. Kuan seems apposite here: “si nombreuses qu’aient été ses interventions, elles n’ont toutefois pas rompu le juste équilibre requis dans la gestion de la preuve”. [18] It is wrong to say the judge rushed the parties and that appellant did not receive a fair hearing as a result. As noted by respondent, the judge even extended the time set aside for the case in order to hear oral arguments by the parties.

The judge was entitled as well, given the rules on relevancy of evidence, to consider critically appellant’s proposal to introduce over 100 exhibits several days before the hearing. Appellant herself acknowledged, before the judge, that “I’m not going to use most of these exhibits, Your Honour”. No reviewable error has been shown. [ 50 ] Finally, no serious argument, with the precision required by the jurisprudence, [19] has been made to show that the judge failed in her duty to signal gaps in the evidence to the parties.

FOR THE FOREGOING REASONS, the Court : [ 51 ] DISMISSES appellant’s de bene esse motion for leave to appeal nunc pro tunc , without costs; [ 52 ] GRANTS appellant’s motion to amend the inscription in appeal, without costs, to add the following conclusion: DECLARE the will to be null by reason of lack of testamentary capacity or, alternatively, for lack of consent by reason of undue influence; […]. [ 53 ] DISMISSES appellant’s motion to adduce new evidence, with legal costs against appellant; [ 54 ] DISMISSES the appeal, with legal costs against appellant.

NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. ÉTIENNE PARENT, J.A. [14] See, e.g., Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235; P.L. v. Benchetrit, 2010 QCCA 1505.