2019 NLCA 2, 2019 NLCA 2

Wendell Temple (appellant) v. Myrtle Bell Peddle by Her Guardian Leo Temple (respondent) (17/28) Indexed As: Temple v. Peddle 2019 NLCA 2 4 C.A.N.L.R. 14 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and O’Brien JJ.A. January 10, 2019

Summary: The respondent, Myrtle Peddle as represented by her son and guardian Leo Temple, applied for an order seeking to compel her other son Wendell Temple, the appellant, to return money to her. Leo Temple alleged that Wendell Temple had attended the bank with his mother and withdrew $50,000, of which he kept $20,000 and returned $30,000. The applications judge found that Wendell Temple had converted $20,000 to his own use and ordered that it be returned.

Wendell Temple appealed arguing the judge erred in his credibility assessment and in concluding that it was proven on a balance of probabilities that he had taken the money. He also applied to present fresh evidence. Held: Application to admit fresh evidence dismissed; appeal dismissed. Fry C.J.N.L. (Welsh and O’Brien JJ.A. concurring): An application for fresh evidence in a civil appeal is governed by rule 37 of the Court of Appeal Rules . The factors that the Court may consider on such an application are: (

a) whether, by due diligence, the evidence could have been brought in the court appealed from; (

b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) the credibility of the evidence; (

d) whether the evidence, if believed, could reasonably have affected the result; and (

e) any other relevant factor. Rule 37 also introduces new procedural directions requiring the applicant to file an affidavit setting out the nature of the evidence, how it meets the criteria for introduction, and why it was not introduced at first instance. William Temple seeks leave to file a certified copy of a safety deposit box lease dated February 26, 2015, signed by himself and his mother at the Bank of Nova Scotia in Clarenville, as he says this demonstrates the judge erred in his analysis of the parties’ credibility. The documentary evidence sought to be filed does not meet the necessary criteria.

There is no indication that the evidence was not readily available before the hearing and it appears that upon reading the judgment, the appellant sought to provide a document in this Court, which would counter the negative comments that the applications judge made about his misgivings about whether or not an account had actually been opened. In these circumstances, even if the document were admitted it would not have affected the result, as it did not advance or bear upon the issues to be determined by the trial judge or the issues before this Court.

No submissions were advanced to suggest that it would be necessary to admit this fresh evidence to ensure that no injustice occurs. There are no other relevant factors. Hence the application should be dismissed. The applications judge’s findings of fact cannot be reversed unless the applications judge has made a palpable and overriding error. An error must be obvious and substantial before it can be found to be palpable and overriding.

The deference afforded by applying the standard of palpable and overriding error to judicial findings of fact also applies with respect to the underlying facts relied upon by the applications judge in the inference drawing process. The applications judge subjected the evidence he heard to a balance of probability analysis, made credibility findings and drew inferences that allowed him to reach the conclusion that Wendell Temple had converted $20,000 to his own use.

Applying the palpable and overriding error standard, there is no basis to interfere in the findings of fact, or factual inferences of the applications judge.

The applications judge stated he was satisfied that Leo Temple had proved the facts “on a balance of probabilities, but to a high degree ofprobability”. In civil matters, there is only one standard of proof. However, the statement by the applications judge could be taken to mean that therequired standard of proof on the balance of probabilities was exceeded. From reviewing the whole of the judgment, it is clear that thecorrect civil standard was applied and no legal error was made in this regard. There is no basis on which to allow the appeal. Cases cited: R. v. Palmer, (SCC), [1980] 1 S.C.R. 759 R. v.

Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487 Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44 Coles v. Coles, 2014 NLCA 3 J.A.S. v. Newfoundland & Labrador (Child, Youth & Family Services), 2013 NLCA 13, 332 Nfld. & P.E.I.R. 33 Harvey v. Harte (1999), (NL CA), 176 Nfld. & P.E.I.R. 279, 36 C.P.C. (4th) 335 (Nfld. C.A.) Cleary v. Courtney, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85 Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 Counsel: Donald A.

MacBeath Q.C., for the appellant; Philip Whalen, for the respondent. This appeal was heard on November 26, 2018 before Fry C.J.N.L., Welsh and O’Brien JJ.A. The following judgment was filed on January 10, 2019 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: [1] This appeal arises from a decision of a Supreme Court judge granting the application of Myrtle Bell Peddle for the recovery ofmoney missing from her safety deposit box.

The application was brought by Leo Temple, Myrtle Peddle’s son and guardian of her estate. [2] Leo Temple and his partner, Gloria Ryan, testified that the last time that the money in the safety deposit box was counted, July3, 2014, it contained $50,000 cash. There was no documented access to the safety deposit box after that time, until the visit referred tobelow. [3] Approximately eight months later in February of 2015, Wendell Temple — another son of Mrs. Peddle — took his mother to thebank where the safety deposit box was located.

He testified that she took the cash from the safety deposit box, and there was only$30,000, which they put in a new safety deposit box at a different bank. This took place the day before Myrtle Peddle was scheduled tobe transferred from the Clarenville hospital to a nursing home in St. John’s.

Wendell Temple testified that he later withdrew the $30,000and took it to his house for safekeeping. [4] Following Leo Temple’s appointment as guardian of his mother's estate, Wendell Temple returned $30,000 cash to his brother.Wendell Temple said this represented the amount of money he took control of when his mother withdrew the money from her safetydeposit box. [5] Leo Temple, as guardian of his mother’s estate, commenced an application for the return of the missing $20,000.

Theapplications judge found that Wendell Temple had converted $20,000 to his own use and ordered that it be paid to Leo Temple asguardian of the estate of Myrtle Peddle. BACKGROUND

[ 6 ] On appeal, the appellant stated that he accepted the facts as summarized by the applications judge but not the inferences that he drew from the facts. I would summarize the findings and factual analysis of the applications judge as follows. [ 7 ] Mrs. Peddle is suffering from dementia and has resided at a nursing home in St. John's since February 27, 2015. On May 2, 2015, her son, Leo Temple, petitioned for letters of guardianship for his mother based on a doctor's opinion that she was no longer able to manage her own affairs.

On October 28, 2015, Leo Temple was appointed guardian of his mother's estate by the Supreme Court of Newfoundland and Labrador. The Order was filed on November 26, 2015. [ 8 ] Leo Temple and his mother had opened a joint safety deposit box account on December 21, 2012 at a branch of the Canadian Imperial Bank of Commerce (CIBC) in Clarenville. At least one of either Leo Temple or Myrtle Peddle had to sign in to access the safety deposit box.

CIBC logs access to safety deposit boxes on a sign in sheet, which a bank official and an account holder must both sign. [ 9 ] The first access to the safety deposit box, after opening, was on July 3, 2014 at 3:20 PM. The log shows Leo Temple’s signature along with C. Smith of CIBC. On that day, Leo Temple, his partner, Gloria Ryan, and his mother attended at the bank because his mother wanted to count the money in her safety deposit box. Myrtle Peddle asked Gloria Ryan to help her count the money while Leo Temple remained nearby.

Gloria Ryan and Leo Temple testified that there was $50,000 cash in a number of envelopes in the safety deposit box, and that they did not take any money with them when they left. [ 10 ] Mrs. Peddle had been showing signs of dementia for a period of time and by February 26, 2015, it was determined by her doctor that she was incapable of managing her own care. Arrangements were in place for her to be transferred from the Clarenville hospital to a nursing home in St. John's the next day. [ 11 ] Wendell Temple visited his mother at the hospital in Clarenville on February 26, 2015.

He testified that after he left the hospital, he was contacted by a hospital employee who informed him that his mother was being transferred to a nursing home in St. John’s the next day. Upon being told this, he returned to the hospital, where his mother asked him to take her to the bank. [ 12 ] On February 26, 2015, Mrs. Peddle, accompanied by Wendell Temple, accessed her safety deposit box at CIBC on two occasions. [ 13 ] On the first occasion when Wendell Temple and his mother arrived at the bank, Mrs. Peddle asked for printouts from her chequing account. Nicole Parrott, branch manager of CIBC, assisted them.

According to Wendell Temple, Mrs. Peddle also wanted to access her safety deposit box. Ms. Parrott testified that she advised Wendell Temple that he could not enter the viewing area because he was not an authorized person on the account. [ 14 ] Ms. Parrott testified that she helped Mrs. Peddle return the safety deposit box to the vault and locked it away, using two keys, one for the account holder and one for the bank. Mrs. Peddle signed out at 3:30 PM and Ms. Parrott testified that she told her that she did not want to remove anything from the safety deposit box. [ 15 ] Mrs.

Peddle and Wendell Temple left the bank but returned shortly thereafter, with the sign in sheet showing that Mrs. Peddle accessed the safety deposit box again on the same day at 4:05 PM. Mrs. Peddle and a bank official signed the logbook. Wendell Temple testified that Mrs. Peddle removed cash in envelopes from the safety deposit box, which she took with her when she and Wendell Temple returned to his vehicle. Wendell Temple counted the cash and testified that the total was $30,000. Wendell Temple testified that a third party, Roxanne Adams, was present in the car at the time when the money was counted.

However, no evidence from this third party was called. [ 16 ] Wendell Temple testified that later that same day he and his mother opened a joint safety deposit box account at the Bank of Nova Scotia in Clarenville. The entirety of the $30,000 was put into this new safety deposit box. [ 17 ] On March 2, 2015, Leo Temple and Gloria Ryan visited the CIBC bank in Clarenville.

Leo Temple signed into the vault at 10:05 AM, witnessed by bank official Mercer, and discovered that there was no money remaining in the safety deposit box. [ 18 ] On May 2, 2015, Leo Temple commenced court proceedings to become guardian of the estate for his mother after he discovered the money missing from the safety deposit box at CIBC and following the doctor’s observation that his mother was not capable of managing her own affairs. [ 19 ] On November 4, 2015, shortly after Leo Temple was appointed guardian of his mother's estate by the Supreme Court, Wendell Temple delivered $30,000 to the law offices representing Leo Temple. [ 20 ] On January 14, 2016, Leo Temple, as guardian of his mother’s estate, filed an originating application with affidavits, seeking $20,000 from the respondent, Wendell Temple. [ 21 ] Wendell Temple testified that, sometime in the fall of 2015, he withdrew the money from the safety deposit box at the Bank of Nova Scotia and took it home for safekeeping.

Wendell Temple claimed that the $30,000 he returned to Leo Temple on November 4, 2015 was the entirety of the money from the safety deposit box that had ever come into his possession or control. ISSUES [ 22 ] In his factum, the appellant states that he takes no issue with the facts as summarized in the decision by the applications judge.

He further states that the sole issue is whether or not the applications judge “made errors of law and palpable and overriding errors in the inferences he drew from the facts he found in concluding that Leo Temple was credible and Wendell Temple was not, and that Leo Temple had proven on a balance of probabilities that Wendell Temple had taken the money.” [ 23 ] A preliminary issue arising is the application by the appellant for the admission of fresh evidence. At the hearing below, the appellant did not file any documentary evidence regarding the opening of a second safety deposit box account at the Bank of Nova

Scotia. Since the applications judge made an adverse inference regarding Wendell Temple’s credibility with respect to the likelihood ofthat event occurring, the appellant now seeks to introduce documentary evidence indicating that he and his mother did in fact open asafety deposit box account at the Bank of Nova Scotia on February 26, 2015. ANALYSIS Application to Admit Fresh Evidence [24] An application for fresh evidence in a civil appeal is governed by rule 37 of the Court of Appeal Rules. Rule 37(3) directs theCourt to consider the following factors: 37(3) In determining the application, the Court shall consider (

a) whether, by due diligence, the evidence could have been brought in the court appealed from; (

b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) the credibility of the evidence; (

d) whether the evidence, if believed, could reasonably have affected the result; and (

e) any other relevant factor. While this rule has not yet been judicially considered, it is essentially a codification of the Palmer criteria that had been previouslyapplied in this Court’s jurisprudence under the former rule 57.21 of the Rules of the Supreme Court, 1986. [25] In both the civil and criminal context, this Court has consistently applied the criteria outlined by the Supreme Court of Canada inR. v. Palmer (1979), (SCC), [1980] 1 S.C.R. 759 on an application to admit fresh evidence on appeal. These criteria werealso re-affirmed by the Supreme Court of Canada in R. v.

Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487. While Palmer and Lévesque areboth criminal cases, in Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44, at para. 8,Binnie J. noted that a “comparable rule in terms of fresh evidence of adjudicative fact is applied in civil cases.” [26] The criteria, as stated in Palmer, are as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases. …

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [27] The appellant seeks leave to file a certified copy of a safety deposit box lease dated February 26, 2015, signed by himself and hismother at the Bank of Nova Scotia in Clarenville. It should be noted that the document provided has a space for witness signatures and abank signatory, which was not completed. His application is accompanied by an affidavit outlining his reasons for seeking to file thedocument now.

The appellant states that in his decision, the applications judge doubted his credibility because, among other things, hedid not produce records of the safety deposit box set up at the Bank of Nova Scotia. The applications judge expressed doubt that therewould have been time to set up the account before the close of business (paragraph 47).

The appellant states that he was taken aback bythe finding that his testimony was generally not credible and that the applications judge found it was more likely that he and his motherhad not set up that account. [28] Rule 37 introduces new procedural directions requiring the applicant to file an affidavit setting out the nature of the evidence,how it meets the criteria for introduction, and why it was not introduced at first instance. [29] In response to the application, the respondent submits that the application fails to meet the formal requirements under rule 37(2)(

b) and (c). 37

(2) The application shall be accompanied by an affidavit setting out (

a) the general nature of the additional evidence sought to be introduced; (

b) the way in which the additional evidence satisfies the criteria set out in subsection (3); and (

c) why the additional evidence was not introduced in the court appealed from. [30] While the affidavit does not specifically address how the proposed evidence meets all the grounds under rule 37(3), it doesgenerally set out the appellant’s position on why the evidence should be received.

Given that the factors for consideration under rule37(3) are open-ended, a failure to address how the evidence meets the criteria in an itemized way is not necessarily fatal to theapplication. [31] While the application may be technically compliant, the lack of detailed explanation on how the evidence meets the criteriaunder rule 37(3), and why it was not introduced in the Court below weighs against the success of the application.

[32] Further, the proposed evidence is of very limited relevance to the actual issue under appeal. The proposed evidence supports onlythe position that Wendell Temple and his mother filled out an application to open a new safety deposit box account at a different bank onFebruary 26, 2015. The evidence of the appellant was that on February 26, 2015 he only took possession, with his mother, of $30,000removed from the original safety deposit box. The appellant returned $30,000 to the respondent on November 4, 2015.

As such, by theappellant’s theory of the case, what he did with this $30,000 in the intervening time period is largely irrelevant. [33] At paragraph 40, the applications judge reduces the case down to two crucial issues of credibility: 1. Were Leo and Gloria Temple credible in saying that there was $50,000 in the safety deposit box on July 3, 2014? 2. Was Wendell Temple credible in saying that only $30,000 was taken from the CIBC safety deposit box on February 26, 2015? [34] The proposed evidence has no direct bearing on either of these issues.

The lease document only demonstrates that an applicationto open the account was made on February 26, 2015. It does not show how much money, if any, was deposited to the safety deposit box,who accessed the safety deposit box or the time and date of any such access. [35] The respondent also raises further issues as to what the document might corroborate. Part B of the form was not completed. Nobank official signed the form. There was no witness attestation or time and date of the lease.

The question arises as to whether the leasewas complete on the date of February 26, 2015 or whether further action by the bank was required. Even if the documentary evidencecould reasonably be believed, it is insufficient to ground the application without more. [36] While the document is relevant in that it goes to the credibility of the appellant, it relates to only one of a number of factorsassessed by the applications judge in making his findings on credibility.

While it is understandable that Wendell Temple wishes to avoidbeing labeled as untruthful as to his statement that he opened an account at the Bank of Nova Scotia, that is not the standard foradmission. The document does not indicate the amount of money, if any deposited, the timing of the deposit or the reason that thedocument was not witnessed on February 26, 2015.

The bank record itself does not pertain to the substantive issues that were decided atthe hearing and could not affect the result as related to the issues outlined by the applications judge. [37] In civil cases, a high standard must be met before fresh evidence is admitted. The court in considering these applicationsexercises great caution which supports the policy of finality of litigation. See Coles v. Coles, 2014 NLCA 3. [38] Having said that, the admission of fresh evidence is discretionary.

Rule 37(1) states: “[u]pon application, the panel hearing theappeal may permit additional evidence for purposes of the appeal.” The rule now also provides that in addition to the criteria outlined in37(3), which is similar to the Palmer criteria, the Court shall consider “any other relevant factor” (Rule 37(3)(e)). [39] With respect to rule 37(2)(c), the appellant’s affidavit does not specifically indicate why the evidence was not introduced at firstinstance. A reasonable inference suggested by the appellant was that he and his counsel did not believe corroborating evidence wasnecessary to support his evidence.

In J.A.S. v. Newfoundland & Labrador (Child, Youth & Family Services), 2013 NLCA 13, 332 Nfld.& P.E.I.R. 33, Justice Hoegg declined to admit fresh evidence in a child protection case. She found that the fresh evidence onlyaddressed one of the several reasons on which the applications judge concluded that continuous custody was in the child’s best interestsand it would not have made a difference to the outcome. She further noted that, while the evidence was “credible and incontrovertible” itwas also readily available at minimal cost prior to the hearing, and could have been adduced.

The same comment could be made herewith respect to the availability of the evidence and minimal cost to the introduction of the evidence at the original hearing. [40] In the circumstances before me, it is my conclusion that the documentary evidence sought to be filed does not meet the criteriaoutlined in rule 37 and in Palmer.

There is no indication that the evidence was not readily available before the hearing and it appears thatupon reading the judgment, the appellant sought to provide a document in this Court, which would counter the negative comments thatthe applications judge made about his misgivings about whether or not an account had actually been opened.

In these circumstances,even if the document were admitted it would not have affected the result, as it did not advance or bear upon the issues to be determinedby the trial judge or the issues before this Court. [41] Palmer was decided in the context of what is now section 683(1)(

d) of the Criminal Code, which explicitly authorizes a court tohear fresh evidence where “it considers it in the interests of justice.” While the language of “interests of justice” is less prevalent in thecivil jurisprudence, it does still arise. For example, in Harvey v. Harte (1999), (NL CA), 176 Nfld. & P.E.I.R. 279,36 C.P.C. (4th) 335 (Nfld.

C.A.) it was noted that “an appellate court may relax the strict application of the principles if such isnecessary to ensure no injustice ensues.” [42] There have been no submissions advanced to suggest that it would be necessary to admit this fresh evidence to ensure that noinjustice occurs. There are no other relevant factors put forward under rule 37(3)(

e) that would warrant a departure from the traditionaltest for admission of fresh evidence. I am not prepared to exercise my discretion to admit the evidence. Whether the applications judge made palpable and overriding errors [43] Cameron J.A. of this Court summarized the standards for appellate review in Cleary v. Courtney, 2010 NLCA 46, 299 Nfld. &P.E.I.R. 85, where she stated: [15] The standards of review applied by this Court were discussed in Ring v. Canada et al., 2010 NLCA 20, at para. 6: The standard of review applied by an appellate court depends upon the nature of the matter being reviewed.

A pure question of law isreviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings of fact,on the other hand, cannot be reversed unless the applications judge has made a palpable and overriding error. A determination ofwhether a legal standard was met involves the application of a legal standard to a set of facts, which is a question of mixed fact and law.

A question of mixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made someextricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount toan error in law and the applicable standard is correctness. These principles are well established: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Findings of credibility are part of the fact-finding process and are subject to the same standard of review, as are inferences drawn fromthe facts.

If inferences drawn by the trial judge are reasonable, an appellate court should not intervene just because other inferencescould also have been reasonably drawn: H.L. v.

Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 74. … [44] The applications judge succinctly captured the essence of the matter before him in order to answer the question he posed forhimself as follows: [39] It is apparent from the preceding that there are two significant blocks of time: from July 3, 2014 to February 26, 2015 when Ms.Peddle’s cash was under the control of Leo Temple and/or Myrtle Peddle; and February 26, 2015 to November 4, 2015 when Ms.Peddle’s cash was under the control of Wendell Temple and/or Myrtle Peddle.

The sign-in sheet for the safety deposit box that CIBCprovided for Ms. Peddle is strong circumstantial evidence that no one had access to the funds in the box at CIBC between July 3, 2014and February 26, 2015. [40] Leo Temple and Gloria Ryan say there was $50,000 in cash in the safety deposit box when Gloria Ryan and Ms. Peddle counted iton July 3, 2014; and Wendell Temple says there was only $30,000 in the safety deposit box when he and his mother counted it onFebruary 26, 2015.

If I accept that no one had access to the safety deposit box between those dates, this matter reduces to the simple, butobvious question: Who is more likely to be telling the truth about how much money was in the safety deposit box on those respectivedates? [45] The applications judge subjected the evidence he heard to a balance of probability analysis, made credibility findings and drewinferences that allowed him to reach the conclusion that Wendell Temple had converted $20,000 to his own use. [46] Although the appellant uses the phrase “errors of law and palpable and overriding errors,” his factum and argument focus on theapplications judge having made palpable and overriding errors in his credibility findings and the inferences that he drew from theevidence.

The appellant acknowledges that a high level of deference is owed and a palpable and overriding error must be shown to havebeen made by the applications judge.

He does not argue an error of law occurred. [47] The appellant stated that the applications judge made a finding that Leo Temple enjoyed his mother’s trust and confidence,which the appellant submits should not go to establishing or enhancing Leo Temple’s credibility. [48] At paragraph 45 of his decision, the trial judge — after setting out the facts, reviewing the affidavit and viva voce evidence, andcharting a timeline of events — made the following comments on the credibility of Leo Temple: [45] It appears by the preceding that Leo Temple enjoyed his mother’s trust and confidence.

The following factors support my belief: • Ms. Peddle set up a joint safety deposit box with Mr. Temple in December 2012. • Ms. Peddle asked Mr. Temple to take her to CIBC in Clarenville in July 2014 so she could access the safety deposit box. • Ms. Peddle insisted that Mr. Temple’s common-law wife, Gloria Ryan, accompany them to CIBC in July 2014. • Ms. Peddle allowed Mr. Temple to open the safety deposit box at CIBC in July 2014 and remove it to the viewing room. • Ms. Peddle insisted that Gloria Ryan help her count its contents. • Mr.

Temple signed the bank’s sign-in sheet confirming they had access to the safety deposit box on the two occasions that hevisited it with his mother. • Mr. Temple retained a key to the safety deposit box after his mother went to the Agnes Pratt Nursing Home in February 2015 andhe and Ms. Ryan returned to view the box in March 2015. • Mr. Temple responded to the need for legal guardianship of his mother and applied in May 2015 to be appointed, and two of hisfour siblings, Eddie Temple and Melita Framp, supported him in that behalf. • Mr.

Temple acted soon after he discovered that the money was missing from his mother’s safety deposit box by suing his brother,Wendell Temple, to recover it because he believes his brother took it. • Neither Leo Temple nor Gloria Ryan was discredited when counsel cross-examined them before me on the affidavits they filed tosupport Leo Temple’s application to recover the funds from Wendell Temple. [46] For those reasons, I accept Leo Temple’s testimony about the missing funds and find him to be credible and trustworthy. [49] The applications judge then reviewed in detail the reasons why he had cause to doubt the credibility of Wendell Temple: [47] On the other hand, there are as many, if not more reasons to doubt Wendell Temple’s credibility.

The following factors supportmy misgivings about him: • Ms. Peddle did not designate Mr. Temple as a joint holder of the safety deposit box at CIBC with her so he did not have independentaccess to it.

• Mr. Temple claimed in his affidavit that his mother and sister, Sheila Freake, were formerly the joint holders of the safety deposit box at CIBC until Leo Temple intervened and changed the access. However, Sheila Freake did not provide an affidavit or testify of [to] that change; nor did Mr. Temple produce any banking records to show that his mother and sister owned the safety deposit box before December 2012 when his mother and brother became its owners. • Mr. Temple took his mother from the Dr. G.B.

Cross Memorial Hospital where she had been hospitalized for several months to CIBC on February 26, 2015, and the next day she was taken to the Agnes Pratt Nursing Home because of the onset of dementia. • Mr. Temple denies that he knew of his mother’s dementia, or that he knew she went to the Agnes Pratt Nursing Home because of it; but he acknowledges that he attended a meeting to discuss his mother’s dementia on February 9, 2015 with doctors and social workers. • Mr.

Temple knew his mother went to a unit at the Agnes Pratt Nursing Home for people with dementia but said he did not know why his mother was in that unit. • Mr. Temple visited his mother at the hospital earlier on February 26, 2015; but he went back to the hospital a second time after he found out she was going to the Agnes Pratt Nursing Home the next day and took her (at her request, he says) to the bank. • Nicole Parrott and Courtney Smith, staff at CIBC, were concerned about Mr. Temple being “too close to what Ms. Peddle was doing” because Mr.

Temple’s name was not on the safety deposit box account when he and his mother were in the viewing room at the bank; and they say they told him to leave the viewing room a “couple of times” before he did. • Mr. Temple says he took the money from the safety deposit box, counted it in his car with his mother and “Roxanne” (she may have been one of Ms. Peddle’s homecare workers) present and he and his mother went immediately to the Bank of Nova Scotia in Clarenville and set up a safety deposit box in their joint names where he deposited the funds. I question Mr.

Temple’s account for these reasons: o He produced no records of the safety deposit box he claimed he and his mother set up in their joint names at the Bank of Nova Scotia; banking records might have verified, for example, that they set the account up and when they did it; that it was in their joint names; and who and when those persons had access to it. o From the sign-in sheet at CIBC it appears that Mr. Temple and his mother had access to the safety deposit box at CIBC twice on February 26, 2017, the first time at 3:30 p.m. and again at 4:05 p.m. I am doubtful if Mr.

Temple and his mother would have time before the close of business at the Bank of Nova Scotia to have set up the safety deposit box at the Bank of Nova Scotia that day; if I make reasonable allowances for them to transact their business at CIBC beforehand, to count the money from the safety deposit box in Mr. Temple’s car, to get to the Bank of Nova Scotia branch after doing so, to set up the new safety deposit box and to deposit the funds to it. o Mr. Temple offered neither an affidavit nor evidence from Roxanne whom he says was in his car when his mother counted the money to verify that it happened. • Mr.

Temple says he withdrew the money he and his mother deposited to the new safety deposit box at the Bank of Nova Scotia sometime in the Fall 2015 and “…brought it to my home for safekeeping”: Mr. Temple’s affidavit dated May 10, 2016, paragraph 12. Why would the money be safer at Mr. Temple’s home than in a safety deposit box at the bank? Evidently Mr. Temple and his mother were the joint holders of the Bank of Nova Scotia safety deposit box, so only one of them would have access to it; and his mother resided at the Agnes Pratt Nursing Home at the time.

If the Bank of Nova Scotia’s safety deposit box protocols are the same as those at CIBC, only Mr. Temple (absent Ms. Peddle) would be able to withdraw the money from it. It is more likely that Mr. Temple and his mother never attended the Bank of Nova Scotia and subscribed to its safety deposit service, as he claims. • Mr. Temple did not disclose that he had taken and that he still maintained control of his mother’s money until after he appeared in Court in September 2015 at Gander to express his opposition to Leo Temple’s application for Letters of Guardianship to their mother’s estate.

Leo Temple believed the money was missing when he applied for the Letters of Guardianship in May 2015 so he did not state it as an asset in the inventory and valuation he filed with the application. He only learned that $30,000 of it remained after Wendell disclosed it following his September 2015 court appearance. (I take no note of Wendell’s failure to disclose to Justice Dymond of this Court that he had the money because the learned justice advised Mr. Temple to obtain legal advice before saying anything; which advice Mr.

Temple apparently heeded, following which he turned over the $30,000 to Leo Temple’s counsel on November 4, 2015). [ 50 ] The matter before the applications judge was resolved by findings of fact, drawing inferences from those facts—including the timing and circumstances of various events—and assessing credibility of witnesses, particularly the two brothers, Leo and Wendell Temple. [ 51 ] The standard of review for findings of fact and inferences drawn therefrom is such that they cannot be reversed unless the applications judge has made a palpable and overriding error.

The Supreme Court of Canada has on several occasions reminded us that a palpable error is “so obvious that it can easily be seen or known”, and “readily or plainly seen”. [ 52 ] Recently, the Supreme Court of Canada reaffirmed that an error must be obvious and substantial before it can be found to be "palpable and overriding” in Benhaim v. St-Germain , 2016 SCC 48 , [2016] 2 S.C.R. 352 where Wagner J. (as he then was) stated: [38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v.

R. , 2012 FCA 165 , 4 B.L.R. (5th) 31 , at para. 46 : Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing.

The entire tree must fall. [ 53 ] At paragraph 37 of Benhaim , Justice Wagner outlines the three principal reasons why appellate courts should defer to trial judge’s findings: (1) deference promotes judicial economy in limiting the number, length and cost of appeals; (2) deference promotes

autonomy and integrity of trial proceedings and avoids duplicate judicial proceedings; and (3) deference reinforces the notion that the trial judges are in the best position to make findings of fact. On the last point Wagner, J stated: [37] … Finally, according deference to a trial judge’s findings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence, they hear viva voce testimony, and they are familiar with the case as a whole.

Their expertise in weighing large quantities of evidence and making factual findings ought to be respected. [ 54 ] The deference afforded by applying the standard of palpable and overriding error to judicial findings of fact also applies with respect to the underlying facts relied upon by the applications judge in the inference drawing process. As stated by the Supreme Court of Canada in Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at paragraph 22 : … we find that by drawing an analytical distinction between factual findings and factual inferences, the above passage may lead appellate courts to involve themselves in an unjustified reweighing of the evidence. Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error.

As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. … [ 55 ] The negative inference drawn by the applications judge regarding the opening of the second bank account was but one of many reasons that he gave for doubting the credibility of Wendell Temple and preferring that of his brother. It does not go to the heart of the matter for it sheds no light at all on how much money was taken out of the original safety deposit box, or how much money, if any, was deposited to that second account.

It does not provide any details as to who and when anyone had access to the safety deposit box. It has no effect at all on a further negative credibility finding that there was no explanation offered by Wendell Temple about why having deposited the money in a safety deposit box at the bank with his mother, he subsequently withdrew all the money and kept it at his home.

He had no explanation for why he thought the money was safer at his home than at the bank other than he thought his brother might try to access it. [ 56 ] The appellant raises the fact that the applications judge, in his findings and inferences on credibility, commented on the lack of either an affidavit or other evidence from Roxanne Adams, who Wendell Temple indicated was with him when he counted the money. This exchange took place during the course of the hearing: [Counsel for Wendell Temple]: And my learned friend has raised with this witness where and why Roxanne hasn’t filed an affidavit.

I take responsibility for that; I didn't think it was necessary. However, she is here and I can call her. I’m prepared to call her if my friend wants to cross-examine. I asked her to attend in case her evidence was needed. I don't see any need to call her. I'm not going to call her, but she’s available. [Counsel for Leo Temple]: I don't want her, your honour, she's not part of the - she's not a party like Mr. Temple. There's no affidavit from her. I'm not prepared to go out and stretch it and see what she's going to say. [ 57 ] Counsel for the appellant made a choice in how to present his case.

This matter was started by originating application, the evidence was provided by affidavit with a right to cross-examine if requested. All of the witnesses who were examined or cross- examined provided an affidavit before the matter was heard in Court. Counsel for the appellant knew what the allegations were and the case he had to meet. Counsel for the respondent had every right to expect that he would not be called upon to cross-examine a witness without having first had an opportunity to determine what the proposed evidence would be.

In my view, it was not a palpable and overriding error for the judge to comment on the lack of evidence from the person who Wendell Temple said was with him when he counted the money. [ 58 ] The appellant also submits that the evidence of Gloria Ryan who counted the money in the presence of Leo Temple and Mrs. Peddle was not properly assessed and not subjected to a credibility finding. I disagree. The applications judge reviewed Ms. Ryan’s evidence at paragraph 43 and noted that Leo Temple concurred with her evidence at paragraph 44 as follows: [43] Ms. Ryan confirmed that Ms.

Peddle had $50,000 in cash in the safety deposit box which was distributed amongst several envelopes. Ms. Ryan says Ms. Peddle was showing some signs of dementia in July 2014 but was still capable of looking after herself. However, by February 26, 2015, Ms. Ryan says Ms. Peddle had deteriorated so that she was incapable of her own care and would be sent off to the Agnes Pratt Nursing Home the next day. Ms. Ryan says she and Leo Temple returned to CIBC on March 2, 2015 and checked the safety deposit box and the money was gone. [44] Leo Temple confirmed what Ms.

Ryan said about their visits to CIBC in July 2014 and March 2015. He says he did not know that his mother deteriorated so much between July 2014 and February 2015 but Dr. Salomon made it clear that she was unable to look after herself. He says Dr. Salomon’s letter of May 29, 2015 confirmed that his mother was incompetent so he applied to be appointed her guardian because “no one else wanted to step up to the plate”.

He notes that his brother, Wendell Temple, and sister, Shirley Freake, initially opposed his application. [ 59 ] The applications judge concluded at paragraph 46: “Neither Leo Temple nor Gloria Ryan was discredited when counsel cross- examined them before me on the affidavits they filed to support Leo Temple’s application to recover the funds from Wendell Temple.” This demonstrates that the applications judge did make an assessment of their credibility, and ultimately found them to be credible. [ 60 ] Applying the palpable and overriding error standard, I see no basis to interfere in the findings of fact, or factual inferences of the applications judge.

Standard of Proof [ 61 ] In the circumstances of this case, a comment on the civil standard of proof is appropriate. In the conclusion of his judgment, the applications judge found that Wendell Temple had converted $20,000 of the $50,000 to his own use and was required to repay the money to the guardian of the estate. He stated he was satisfied that Leo Temple has proved “on a balance of probabilities, but to a high

degree of probability the following facts:…” (emphasis added). [ 62 ] In civil matters, there is only one standard of proof. The Supreme Court of Canada, in F.H. v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41 , discussed the possibility of differing standards of proof requiring different levels of scrutiny of the evidence depending on the seriousness of the issue. The Court concluded: [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities.

In all civil cases, the applications judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [ 63 ] In the present case, the statement by the applications judge could be taken to mean that the required standard of proof on the balance of probabilities was exceeded in his view. From reviewing the whole of the judgment, it is clear that the correct civil standard was applied and no legal error was made in this regard.

In the interests of clarifying the law, if any is required, I reiterate that the standard of proof in civil cases is on the balance of probabilities and there is no sliding scale to be applied.

SUMMARY [ 64 ] For the reasons outlined, I would dismiss the application to admit fresh evidence and, as the applications judge’s reasons disclose no errors, I would dismiss the appeal. The respondent having been successful on both matters shall have his costs on column 3 in accordance with the Court of Appeal Rules . Application to admit fresh evidence dismissed; appeal dismissed .