WENDY JANE EDGECOMBE FIRST APPELLANT AND: DARIA ANN EDGECOMBE SECOND APPELLANT AND: SCOTT WILLIAM EDGECOMBE THIRD APPELLANT AND: COLIN CHRISTOPER EDGECOMBE FOURTH APPELLANT AND: JOHN MAXWELL EDGECOMBE FIFTH APPELLANT AND: ELIZABETH LOUISE NICHOLAS FIRST RESPONDENT AND: MD PRIVATE TRUST COMPANY, SECOND RESPONDENT Executor of the Last Will v. Testament, 2023 NLCA 19

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Edgecombe v. Nicholas , 2023 NLCA 19 Date : June 20, 2023 Docket Number : 201801H0099 BETWEEN: WENDY JANE EDGECOMBE FIRST APPELLANT AND: DARIA ANN EDGECOMBE SECOND APPELLANT AND: SCOTT WILLIAM EDGECOMBE THIRD APPELLANT AND: COLIN CHRISTOPER EDGECOMBE FOURTH APPELLANT AND: JOHN MAXWELL EDGECOMBE FIFTH APPELLANT AND: ELIZABETH LOUISE NICHOLAS FIRST RESPONDENT AND: MD PRIVATE TRUST COMPANY, SECOND RESPONDENT Executor of the Last Will and Testament of John Maxwell Edgecombe Coram: F.P. O’Brien, W.H. Goodridge and D.M. Boone JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 201801G1175 ( 2018 NLSC 176 ) Appeal Heard: March 8, 2023 Judgment Rendered: June 20, 2023

Reasons for Judgment by: D.M. Boone J.A. Concurred in by: F.P. O’Brien and W.H. Goodridge JJ.A. Counsel for the Appellants: Ashley R. Parsons Counsel for the First Respondent: Randell L. Wellon Counsel for the Second Respondent: Kathleen M. O’Neill Authorities Cited: CASES CITED: Niles et al. v. Lake, (SCC), [1947] S.C.R. 291; Vokey v. Vokey Estate (1997), (NLCA), 149 Nfld. & P.E.I.R. 1 (Nfld. C.A.); Re Mailman Estate, (SCC), [1941] S.C.R. 368; Pecore v. Pecore, 2007 SCC17, [2007] 1 S.C.R. 795; Brown v. Rotenburg, (ON CA), [1946] 4 D.L.R. 139 (Ont. C.A.); Bradley v.

Crittenden, (SCC), [1932] S.C.R. 552; Smallman v. Moore, (SCC), [1948] S.C.R. 295; Allen v. Stone (1996), (NL CA), 146 Nfld. & P.E.I.R. 308 (Nfld. C.A.); Tarrant v. Manufacturer’s Life Insurance Co. (1993), (NLSC), 113 Nfld. & P.E.I.R. 162 (Nfld. T.D.); East Point Condominium Corporation v. Gibraltar Development Ltd., 2019 NLSC 59 STATUTES CONSIDERED: Evidence Act, RSNL 1990, c. E-16,

section 16 RULES CONSIDERED: Rules of the Supreme Court, 1986, rule 40 D.M. Boone J.A.: BACKGROUND [1] This appeal concerns the beneficial ownership of money deposited into joint bank accounts by a person before his death. Thetrial was contested by the other account holder on one side and the adult children of the deceased depositor on the other. [2] Dr. John Edgecombe died in 2014, survived by the Appellants, his five adult children from a marriage that effectively ended inthe 1970’s (the “Edgecombes”) and the First Respondent, his common law spouse of almost 40 years (“Ms.

Nicholas”). [3] At the time of his death, Dr. Edgecombe and Ms. Nicholas jointly held four bank accounts. Dr. Edgecombe was the soledepositor of money into three of the accounts; he and Ms. Nicholas both put money into the fourth. The Edgecombes maintained that Dr.Edgecombe was the beneficial owner of these accounts that, therefore, became assets of his estate when he died. Ms. Nicholas said thatDr. Edgecombe intended that she would be the beneficial owner of these accounts after his death. [4] Dr.

Edgecombe’s executor, the Second Respondent, applied to the Supreme Court for a determination of the issue of beneficialownership of the accounts. The trial judge decided that Ms. Nicholas was the beneficial owner and, therefore, that the money in theseaccounts was not part of Dr. Edgecombe’s estate. The Edgecombes appeal from that decision. [5] It is common ground among the parties - and an accurate statement of law - that the determination of beneficial ownership ofmoney deposited by one person into a bank account jointly held with another turns on the intention of the depositor.

Intention is aquestion of fact, and each party bears the burden of proving the facts supporting the assertion on which they rely. However, certainpresumptions may apply to reverse the burden of proof. In the case of gratuitous transfers of property generally, and joint bank accountsspecifically, two rebuttable evidentiary presumptions may apply. [6] The rule that usually applies to gratuitous transfers of money is the presumption of resulting trust. The transferor is presumedto have intended only to transfer legal title but not beneficial ownership.

Unless the transferee demonstrates by evidence that thetransferor intended a gift of beneficial ownership, the transferee is considered to hold the money in trust for the transferor or thetransferor’s estate. [7] However, when the gratuitous transfer is from parent to child, the presumption of advancement applies and, in the absence ofproof to the contrary, the transfer is presumed to have been intended as a gift of beneficial ownership during the transferor’s life to a

child who stood to inherit on the transferor’s death. [8] At trial, Ms. Nicholas argued that the presumption of advancement should also apply to common law relationships. The trialjudge, however, decided that the presumption of advancement did not apply to gratuitous transfers between common law spouses in thisprovince. Ms. Nicholas did not appeal from that decision and that point is not in issue on this appeal. [9] The Edgecombes relied at trial on the presumption of resulting trust and they argued that the gratuitous deposit of money intothe joint accounts by Dr. Edgecombe was never intended to be a gift to Ms.

Nicholas but was intended to create a fund which could beused to care for him if he became incapacitated. Ms. Nicholas took the position that even if the presumption of resulting trust appliedthen she had rebutted it through evidence that proved that Dr. Edgecombe intended that she would be the beneficial owner of money inthe joint accounts if he died before she did. [10] The trial judge decided that Ms. Nicholas beneficially owned the joint accounts. She based her decision on evidence related tothe establishment of the accounts, evidence regarding the quality of Dr.

Edgecombe’s relationship with his children and with Ms.Nicholas, and evidence related to Dr. Edgecombe’s management of his financial affairs. [11] The parties agreed on the appeal that the presumption of resulting trust applies in the circumstances of this case. [12] The Edgecombes argued that the trial judge erred in finding certain facts relating to Dr. Edgecombe’s intention in depositingmoney in the joint accounts. They also said that the trial judge erred in law by taking into account legally irrelevant factors inconsidering whether Ms.

Nicholas had rebutted the presumption of resulting trust in respect of all of the accounts. Finally, they arguedthat the trial judge made procedural decisions that unfairly prejudiced the conduct of the trial. [13] I would dismiss the appeal. ANALYSIS Standard of Review [14] The Edgecombes advanced several grounds of appeal. I will describe the grounds as I consider them. The grounds of appealraise different categories of questions, to which this Court will apply different, settled standards of review. [15] The Edgecombes rely on two grounds of appeal which they maintain raise errors of law.

The standard of review on questions oflaw is correctness: this Court will review a trial decision to ensure that the trial judge applied correct legal principles, substitute correctconclusions for incorrect, and overturn any part of the decision that is traceable to errors of law. [16] The main thrust of the appeal impugns findings of fact made by the trial judge. This Court cannot reverse findings of factunless those findings contain errors that are palpable and overriding.

A palpable error of fact is one that is clearly seen and plainly wrongbecause it is either unsupported by any evidence or based on a misapprehension of the evidence. An error of fact is overriding if theoutcome would have been different if not for the error. [17] The Edgecombes also argue that the trial judge erred in applying a legal standard to the facts she found regarding two of thejoint accounts. Appellate consideration of a trial judge’s application of a legal standard raises a mixed question of fact and law.

If anappellant shows that an error of principle in the characterization of the legal standard can be extricated from the trial judge’s conclusions,then this Court will review the judge’s understanding of the principle on the standard of correctness. Otherwise, the judge’s applicationof the standard will only be reviewed for palpable and overriding error. [18] Finally, the Edgecombes allege two instances of procedural unfairness that they say affected the outcome of the trial. Issues ofprocedural fairness are reviewable on the correctness standard.

Joint Bank Accounts [19] Subject to specific agreement otherwise, the designation of a bank account as a joint account merely creates rights betweeneach of the account holders and the bank, and between or among the account holders as to how they can deal with the bank while theyare all alive.

Setting up a joint account usually signifies, as Rand J. stated (regarding the specific agreement at issue) in Niles et al. v.Lake, (SCC), [1947] S.C.R. 291, at page 307: …the creation of a relationship to the bank in such terms as would preclude any challenge to the irrevocable authority of either of thedepositors to deal with the account in unqualified fashion and as if she were the sole owner of the funds; that an estoppel should be raisedthat would remove the possibility of controversy between the depositors or persons representing them involving the bank. [20] Resolution of an issue of beneficial ownership of the funds in a joint account depends upon the intention of the accountholders.

When one person deposits money into an account held jointly with another, then that money is presumed to remain thebeneficial property of the depositor and subject to a resulting trust imposed on the other holder in favour of the depositor. As this Courtput it in Vokey v. Vokey Estate (1997), (NL CA), 149 Nfld. & P.E.I.R. 1 (Nfld. C.A.): 17 The right of survivorship is the most important feature of a joint tenancy (Halsbury's Laws of England, 4th ed., Butterworth, Vol.39, para. 531).

It is settled law, however, that the maintenance of a joint bank account, per se, is not necessarily conclusive of thesurvivor's beneficial right to the entire interest in the account on the death of a holder.

Where, for example, as in the case at bar, all of themoney that went into the account was deposited by the deceased holder, the surviving joint holder who is unable to show anyconsideration for the transfer into his or her name through the account, is presumed to hold the money for the deceased's estate unlessthe presumption is rebutted by proof that a gift was intended by the deceased. 18 This presumption derives from the premise that equity assumes bargains, not gifts.

[21] The court in Vokey supported this statement of the law by reference to two older cases in the Supreme Court of Canada: Niles v.Lake and Re Mailman Estate, (SCC), [1941] S.C.R. 368. The holding in those cases was more recently confirmed andapplied by the Supreme Court in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795. The Presumption of Resulting Trust [22] The Supreme Court of Canada, in Pecore v.

Pecore, described a resulting trust as follows: 20 A resulting trust arises when title to property is in one party's name, but that party, because he or she is a fiduciary or gave novalue for the property, is under an obligation to return it to the original title owner [citations omitted]. [23] Whenever one person makes a gratuitous transfer of property to another, the law presumes that the transferor did not intend togive away beneficial ownership. To quote again from Pecore: 24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.

When atransfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onusis placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M.Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts. 25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging thetransfer in these cases) bears the legal burden in a civil case.

Rather, the onus is on the transferee to rebut the presumption of a resultingtrust. 26 In cases where the transferor is deceased and the dispute is between the transferee and a third party, the presumption of resultingtrust has an additional justification. In such cases, it is the transferee who is better placed to bring evidence about the circumstances ofthe transfer.

Rebutting the Presumption of Resulting Trust [24] A transferee can rebut the presumption of resulting trust with evidence showing that, more likely than not, the transferorintended that the transfer was to include beneficial as well as legal ownership: Pecore, at para. 48. [25] When the transferor is deceased, the testimony of the transferee alone cannot rebut the presumption because the Evidence Act, RSNL 1990, c. E-16, s. 16 requires corroboration: 16.

Evidence against estate of deceased person In an action or proceeding by or against the representatives of a deceased person, an opposite or interested party to the action shall notobtain a verdict, judgment or decree in the action on his or her own evidence in respect of a matter occurring before the death of thedeceased person, unless that evidence is corroborated by some material evidence. [26] This Court in Vokey described the import of that provision: 21 ...This is obviously a rule aimed at protecting against fraud. Therefore, a belief on the judge's

part in the claimant's assertion thata gift was intended is essential, but not sufficient to rebut the presumption that none was intended. The legislation explicitly requires thatthe claimant's evidence be corroborated by other material proof. [27] Corroboration is a legal term of art that describes the relationship between items of evidence, and between evidence and fact-finding. Evidence is corroborative if it confirms, strengthens or adds weight to other evidence. With particular regard to thecorroboration required in an action against an estate, the Ontario Court of Appeal in Brown v.

Rotenburg, (ON CA),[1946] 4 D.L.R. 139 (Ont. C.A.), at page 148 described the effect of the Ontario equivalent of

section 16 of the Evidence Act: …It is not necessary that an independent or disinterested witness testify in support of the plaintiff's evidence. Moreover, thecorroboration required by s. 11 of the Ontario Evidence Act, R.S.O. 1937, c. 119, need not be of every detail of the respondent's case. Ithas been held that "It is sufficient that the evidence relied upon as corroboration is evidence of some material fact or facts that supportthe testimony”: Ollson v.

Fraser, Barned & Powell, (ON CA), [1945] O.R. 69, [1945] 1 D.L.R. 481, at p. 485, O.R. 69.The evidence tendered in corroboration need not be in respect of the vital and essential portion of the respondent's evidence.

"All that thestatute requires is that the evidence shall be strengthened by some evidence which appreciably helps the judicial mind to believe one ormore of the material statements or facts deposed to" [citations omitted]. [28] In Pecore, at paragraphs 56-70, the Supreme Court of Canada set out a non-exhaustive list of factors that the courts could lookat to determine the intent of the person who transfers funds into an account held jointly with another: • Bank documents and contemporaneous evidence; • Evidence of conduct subsequent to the transfer; • Control and use of the funds; • Granting of a Power of Attorney; • Tax treatment of money in the joint accounts.

The Trial Judge’s Decision

[29] The trial judge expressly cited and applied the Pecore factors. She held that certain evidence supported the intent of Dr.Edgecombe to provide for a right of survivorship and therefore tended towards rebutting the presumption of resulting trust. In particular,she found that bank documents setting up two of the accounts (the BMO accounts), and evidence from banking officials regarding all ofthe accounts, supported such an intention. In addition, she found that the fact that Ms. Nicholas did not use the funds in three of theaccounts, even when Dr.

Edgecombe was ill, was inconsistent with his having set up the accounts for his own care. [30] The trial judge found that the tax treatment of the accounts was a neutral factor because, although Dr. Edgecombe paid thetaxes on interest earned in the accounts, he did so because of his understanding of income attribution rules that required that he treat theincome as his for tax purposes. [31] The trial judge also assigned significant weight to evidence that showed that Dr. Edgecombe had considerable love andaffection for Ms.

Nicholas, especially considered in comparison to the quality of his relationship with the Edgecombes, which hadgenerally deteriorated over time.

Did the Trial Judge Err in Law by Including an Irrelevant Factor in a Legal Test? [32] The Edgecombes argued that the quality of the relationship between a deceased and the other joint account holder is not one ofthe Pecore factors and that it was therefore an error of law for the trial judge to have considered this as corroborative evidence tendingtowards rebutting the presumption of resulting trust. [33] However, the trial judge considered this evidence in applying the Pecore factor of “evidence subsequent to the transfer”: Evidence subsequent to the transfer if it helps determine intention at the time of transfer 217 Pecore confirms that the transfer in circumstances such as those being addressed herein, is inter vivos and takes effectimmediately.

Thus, when determining evidence subsequent to the transfer, I am reviewing evidence subsequent to the creation of thejoint accounts. 218 The evidence as a whole confirms that during the currency of the joint Accounts in question, Dr. Edgecombe and Louise Nicholaswere in a relationship resembling marriage and that Louise Nicholas was the person with whom Dr. Edgecombe was the closest and mostconcerned about… … 221 Despite testimony from four of the children that they continued to have a good relationship with their father, the evidence as awhole supports the conclusion that after 1998 Dr.

Edgecombe was estranged from John and Colin and that neither telephoned,corresponded, made gifts, or inquired after their father for the next sixteen years. Billy remained in infrequent contact. Wendy's contactwas fairly frequent until 2012 and then almost non-existent. Daria maintained contact and assisted Dr. Edgecombe and Louise Nicholason various occasions in the last six years of Dr.

Edgecombe's life particularly after she moved to Conception Bay South. [34] The Edgecombes have not demonstrated that there was any error in law in considering this evidence in this way. [35] Moreover, although the Supreme Court of Canada in Pecore did not explicitly include the quality of relationship in its list ofrelevant factors, Rothstein J. for the majority, did say, at paragraph 37: “I see no reason why courts cannot consider evidence relating tothe quality of the relationship between the transferor and transferee in order to determine whether the presumption of a resulting trust hasbeen rebutted.” The Court also considered the quality of the relationship between the parties at the time of transfer as a significant factorin assessing the decision of the trial judge (see para. 71). [36] Indeed, it would be inconsistent with experience if the legal test for application of the presumption in these circumstancesexcluded consideration of the nature and quality of the relationship between the deceased and the other account holder, either on its ownor in contrast with the relationship between the deceased and other claimants to the money in the account.

A gift by definition is atransfer without pecuniary consideration. One of the primary motivations for a gift is a feeling of love or affection felt by the givertowards the recipient: see Bradley v. Crittenden, (SCC), [1932] S.C.R. 552 at page 556. [37] Certainly, love and affection are not the only motivators for gift-giving. The reasons behind a gift may be myriad andcomplicated and include feelings of gratitude or guilt or charity or the emotional benefits that come with benevolence.

But, it cannot besaid that considering the absolute or relative quality of the relationship between the deceased, on one hand, and each of the variousclaimants, on the other, is an error of law within the Pecore framework. [38] The trial judge also gave weight to evidence of the work performed by Ms. Nicholas in maintaining and growing the hobbyfarm on Dr. Edgecombe’s property. The Edgecombes say that this was irrelevant and could only be considered in a quantum meruitclaim. However, the trial judge only considered this evidence as one attribute of the close relationship between Dr. Edgecombe and Ms.Nicholas.

There was no error in her having considered it in that light, in an effort to understand Dr. Edgecombe’s possible motivationsfor gifting the money in the joint accounts to Ms. Nicholas. Ms. Nicholas never suggested that she worked on the farm in return for apromise or expectation of compensation in the form of a right of survivorship in the joint accounts, and there was no need for the trialjudge to have considered it from that perspective. [39] This ground of appeal should be dismissed.

Did the Trial Judge Err in Law or Mixed Fact and Law in Applying the Requirement for Corroboration? [40] Four joint accounts were in issue at trial; two BMO accounts and two RBC accounts. The banking documents that established

the BMO accounts were adduced at trial; the RBC witness testified that the equivalent documents for the RBC accounts could not belocated. The Edgecombes say that in law there was therefore insufficient evidence corroborating that of Ms.

Nicholas in respect of Dr.Edgecombe’s intention in depositing money to the RBC accounts. [41] This ground of appeal also fails, for the following reasons. [42] First, as noted in Vokey, at paragraph 27, as a general rule, these kinds of bank documents only provide for legal title andusually do not speak to beneficial ownership (although in this case, the trial judge accepted that the BMO documents provided forbeneficial right of survivorship). The absence of these documents therefore does not detract from the question of whether other evidencecorroborated Ms.

Nicholas’ testimony. [43] Second, and more important, the requirement for corroboration does not mean that every aspect of Ms. Nicholas’ case had to becorroborated. As this Court said in Vokey, at paragraph 32, it is “sufficient that there be evidence which strengthened and made morecertain the testimony of the interested party” and (quoting from Smallman v. Moore, (SCC), [1948] S.C.R. 295), theEvidence Act,

section 16 “does not mean that every fact must be corroborated, but merely that ‘the evidence of the interested party itselfis to be corroborated by some other material evidence’". [44] The trial judge decided that other evidence corroborated that of Ms. Nicholas in respect of the RBC accounts as well as theBMO accounts. The characterization of whether evidence can be corroborative is a question of law; the question whether it doescorroborate is a question of fact. The absence of RBC banking documents does not mean that other evidence could not, as a matter oflaw, be corroborative of Ms.

Nicholas’ evidence, or, as a matter of fact, demonstrate Dr. Edgecombe’s intention. Did the Trial Judge Make Palpable and Overriding Errors of Fact? [45] The Edgecombes argued that the trial judge made numerous errors in finding facts or making inferences from fact, each ofwhich separately constituted palpable and overriding errors, or which in the aggregate showed misapprehension of the evidence as awhole. Misstatement as to which of Dr. Edgecombe’s children he considered naming as an attorney [46] The evidence at trial included testimony from Ms. Nicholas and from Wendy Edgecombe that Dr.

Edgecombe had askedWendy to serve as his alternate (to Ms. Nicholas) Attorney under a Power of Attorney. There was no evidence that Dr. Edgecombe everexecuted a Power of Attorney. Later, at paragraph 228, in discussing the Pecore factor “Any Power of Attorney”, the trial judge saidthat it was Daria Edgecombe that Dr.

Edgecombe wanted as “his secondary Attorney” and that “his choices in that regard are consistentwith what the evidence as a whole supports as the two people in his life who he trusted (to varying degrees) would provide care for himif he was incapable.” [47] It is clear that the trial judge mistakenly referred to Daria Edgecombe instead of Wendy Edgecombe at paragraph 228. However, this error was incidental and of no consequence to the trial judge’s decision. The trial judge set out a detailed description ofthe evidence related to the relationship between Dr. Edgecombe and each of the Edgecombes.

She found that only Wendy and DariaEdgecombe maintained any kind of close relationship with their father. She took the relative quality of those relationships into account. The misattribution of consideration as Attorney to Daria instead of Wendy did not alter the trial judge’s conclusions. It was not,therefore, overriding. Findings regarding Dr. Edgecombe’s health in his later years [48] At trial, the Edgecombes argued that Dr. Edgecombe’s motivation in establishing and funding the joint accounts was to providefor his care in the event he became incapacitated. They gave evidence showing Dr.

Edgecombe’s declining health in the years before hisdeath in support of that position, and the trial judge referred several times to Dr. Edgecombe’s health issues. There was no evidence thatDr. Edgecombe was, at the time he deposited the money into the accounts, worried about the possibility of loss of capacity. [49] On appeal, the Edgecombes pointed out that the trial judge did not refer to evidence related particularly to Dr. Edgecombe’shealth in the last year of his life. However, that makes considerable sense in light of the task required of the trial judge, as Dr.Edgecombe and Ms.

Nicholas established the accounts many years before that time. Dr. Edgecombe’s health many years after theaccounts were established was not relevant to his intentions when he deposited the funds. It was not an error for the trial judge to fail toaddress irrelevant evidence. [50] The Edgecombes also argue that the trial judge ignored evidence from Ms. Nicholas that Dr. Edgecombe had told her that shecould access the accounts if needed to cover any costs of his later care. A desire to provide for care in such a situation can often be amotivation to create a joint account (see Pecore, at para. 47).

However, in light of the trial judge’s finding that considerable evidencesupported Dr. Edgecombe’s intention to give a right of survivorship in the accounts to Ms. Nicholas, explicit consideration of thatevidence would not have changed the outcome in this case. Inference as to whether Ms. Nicholas was adequately looked after by Dr. Edgecombe [51] Ms. Nicholas testified that Dr. Edgecombe told her that she would be “looked after” following his death if she survived him. The Edgecombes say that Ms. Nicholas was well provided for by other money that Dr.

Edgecombe gave her, aside from that in the jointaccounts, and that this statement did not support her claim to the joint accounts. [52] The Edgecombes did not present any evidence as to what Dr. Edgecombe would have understood by the term “looked after”, orhow much he would have considered would fulfill that intention. Rather, they offered evidence regarding the net worth of Ms. Nicholasto show that she had already been well looked after. The trial judge did not refer to that evidence in the

summary of her salient findings. [53] That the trial judge did not consider evidence of Ms. Nicholas’ net worth was not an error. Without context framed around Dr.

Edgecombe’s understanding of how much he intended to contribute to Ms. Nicholas’ net worth, this evidence had no probative value. The trial judge made no error in ignoring it. Inferences from Dr. Edgecombe’s offer to give Ms. Nicholas cash [ 54 ] The evidence established that, just before his death, Dr. Edgecombe offered to give Ms. Nicholas $30,000, although he never gave it to her. The trial judge rejected what she asserted as the Edgecombes’ inference that this established that Dr. Edgecombe was not lucid. The trial judge found, at paragraph 165, that this offer “was more consistent with a recognition by Dr.

Edgecombe that there would be some immediate expenses to be incurred by Ms. Nicholas on his demise and that the money in the joint Accounts may not be accessible by her right away.” [ 55 ] On appeal, the Edgecombes say that the trial judge misunderstood their suggested alternate inference. They say that the inference that they asked the trial judge to draw from this offer was that Dr.

Edgecombe would not have made it if he felt that he had already gifted a right of survivorship in the joint accounts. [ 56 ] The role of this Court is not to choose between alternate inferences from established fact, but only to assess whether the inference drawn by the trial judge is one that could reasonably be drawn in light of applicable legal principles. If so, then there is no error. The Edgecombes have not demonstrated any such error in the inference drawn by the trial judge from this $30,000 offer.

Inference from tax treatment of money in joint accounts [ 57 ] The evidence showed, and the trial judge found, that Dr. Edgecombe paid tax on interest earned on money that he deposited in the joint accounts. Tax treatment of money in joint accounts is one of the Pecore factors. The Edgecombes say that the trial judge ought to have inferred from the tax treatment in this case that Dr. Edgecombe considered this money to be all his and not gifted to Ms. Nicholas. However, the trial judge, based on evidence from Dr.

Edgecombe’s accountant, found that he paid the tax on these accounts because he understood that to be a proper application of the income attribution rules under the Income Tax Act . This was a reasonable inference from the evidence and not shown to be in error. Findings of Credibility of Ms. Nicholas [ 58 ] The Edgecombes say that the trial judge erred in her assessment of the credibility of Ms. Nicholas. In their Factum, they noted several points where they suggest that Ms.

Nicholas’ direct testimony was contradicted either by her answers on cross-examination, or by evidence which she had previously given by way of Affidavit or on discovery. [ 59 ] Findings regarding credibility are part of the fact-finding process and subject to the standard of review for palpable and overriding error. In this case, the trial judge considered the credibility of Ms. Nicholas at some length (paras. 49-62 of the trial judgment), taking into account the same alleged inconsistencies and contradictions raised by the Edgecombes on appeal.

The Edgecombes did not show any reviewable error in the conclusions made by the trial judge. Conclusion on appeal grounds raising alleged errors of fact [ 60 ] The appeal based on alleged errors of fact therefore should be dismissed. Failure to Consider Evidence related to one RBC account [ 61 ] The evidence at trial showed that one of the RBC accounts (identified as 669#omitted) was different from the other three joint accounts in two respects: both Ms. Nicholas and Dr.

Edgecombe deposited money in this account and both used that money for household expenses. [ 62 ] The trial judge’s only references to her disposition regarding this account were in her introduction and her conclusion: 3 As will become apparent, because she was a joint depositor, the issues to be determined herein have no application to the RBC Account [669#omitted]. This decision addresses only the three remaining Accounts. … 243 It is ordered that, in addition to Royal Bank of Canada Operating Account [669#omitted], Louise Nicholas is both the legal and beneficial owner of: 1.

BMO Savings Account [141#omitted] with a balance as of Dr. Edgecombe's date of death of $388,248.21. 2. BMO Nesbitt Burns Account [518#omitted] with a balance as of Dr. Edgecombe's date of death of $988,792.09. 3. GIC Account [001#omitted] with a balance as of Dr. Edgecombe's death of $40,327.66. 244 These Accounts pass outside of the Estate of Dr. John Maxwell Edgecombe and are not subject to the terms of his Last Will and Testament. [ 63 ] The Order issued by the trial judge was in the same terms as paragraph 243 of her decision. She therefore ordered that Ms.

Nicholas was both the legal and beneficial owner of RBC account 669#omitted, even though she had also said her analysis did not apply to that account. [ 64 ] The trial judge expressly excluded this account from her analysis and application of the Pecore factors. The only basis that can

be discerned for her decision that Ms. Nicholas was the beneficial owner of all of the money in that account is that Ms. Nicholas deposited some of that money. [ 65 ] The Edgecombes argue that this was an error of law, or of mixed fact and law based on an extricable error of legal principle. The question raised by this ground of appeal is whether, as a matter of law, one account holder becomes the beneficial owner by right of survivorship of all funds in an account solely because the survivor also deposited money into the account.

The parties did not identify any such legal principle, and the authorities are inconsistent with such a proposition. [ 66 ] The authorities therefore do not support the legal basis relied on by the trial judge. However, the record on appeal allows this Court to resolve the question of beneficial ownership without remitting the matter back to the Supreme Court. [ 67 ] The Pecore factors do not strictly apply to this account.

The Supreme Court of Canada, in the opening paragraph of Pecore , described the case as considering “questions about joint bank and investment accounts where only one of the account holders deposits funds into the account”. [ 68 ] The presumption of resulting trust arises when a person gratuitously transfers something to another. The presumption does not apply in respect of this bank account, or in respect of the money that Ms. Nicholas and Dr. Edgecombe, respectively, deposited into it.

There is no evidence in the record that either deposited the money gratuitously; they each deposited the money as their contribution to household expenses. [ 69 ] The joint holding of the account meant that either of Ms. Nicholas or Dr. Edgecombe during their respective lifetimes could legally have withdrawn all of the money in the account. Once Dr. Edgecombe died, then Ms. Nicholas remained legally entitled to the money in the account unless Dr. Edgecombe’s estate could successfully assert a beneficial interest in that money.

Consequently, the Estate (or in this case, the Edgecombes who were asserting a claimed interest of the Estate) bore the onus to prove this beneficial interest. [ 70 ] The use of the money in this account to pay household expenses was inconsistent with an intention by either Dr. Edgecombe or Ms. Nicholas to give the other beneficial ownership of that money during their lifetimes. [ 71 ] But, once Dr. Edgecombe died, the original purpose for the deposit of money into this account was spent. The question then became whether Dr. Edgecombe intended that Ms.

Nicholas should beneficially own all of the monies in this account. The other evidence that the trial judge considered in applying the Pecore factors supports the position of Ms. Nicholas that Dr. Edgecombe had the same intention regarding the right of survivorship in this account as he did with the others. This is so even considering the evidentiary requirement imposed by

section 16 of the Evidence Act . [ 72 ] Therefore, although the Edgecombes successfully demonstrated that the trial judge applied a wrong legal principle in arriving at her decision, applying the correct legal principles results in the same conclusion, that Ms. Nicholas is the beneficial owner of all of the money in this RBC account. Procedural Fairness [ 73 ] The Edgecombes raise two questions of procedural fairness in the conduct of the trial that they argue justify setting aside the decision of the trial judge. Orders by trial judge restricting evidence regarding validity of Dr.

Edgecombe’s Will [ 74 ] In a separate proceeding, the Edgecombes contest the validity of Dr. Edgecombe’s Will. In a case management meeting prior to trial of the matter under appeal, the trial judge directed that counsel for the Edgecombes not ask a particular witness “any questions relative to the execution of the Will because the answers that she might give to those questions would not be relevant to ownership” of the joint accounts. The Edgecombes say that this limitation turned out be unfair because the trial judge, at paragraph 234, made inferences of Dr.

Edgecombe’s generosity based on bequests made in that Will. Notably, the bequest to which she referred was one to a third party, and not to either of the parties in this matter. [ 75 ] This was not unfair. The trial judge did not preclude either party from introducing evidence regarding the bequests in the Will, only its execution and validity. Ms.

Nicholas led evidence regarding the substance of the Will at trial, without objection from the Edgecombes, and they were not precluded from pursuing questioning regarding the import of the bequests purportedly made in it or from arguing inferences to be drawn from the substance of the Will. Surprise witnesses and request for postponement [ 76 ] The Edgecombes learned one week prior to trial that Ms. Nicholas intended to call friends of Dr. Edgecombe to testify. At trial, these witnesses described the relationship between Dr. Edgecombe and Ms. Nicholas, and their observation of Dr.

Edgecombe’s interaction with the Edgecombes. [ 77 ] The Edgecombes asked during case management for a postponement of the trial in order to examine these witnesses for discovery. The trial judge indicated that she would not be inclined to grant this request, and suggested to counsel for the Edgecombes that they could telephone these witnesses and ask them what their evidence would be. The trial judge told the Edgecombes that they could formally apply for postponement.

They never did so. [ 78 ] The Edgecombes say that proceeding with the trial in these circumstances was unfair for two reasons. [ 79 ] First, they submit that the names of these witnesses should have been included in a witness list that the Rules of the Supreme Court, 1986 required with the Certificate of Readiness. This is not the case. Neither Rule 40 of the Rules of the Supreme Court, 1986 nor the form of Certificate of Readiness prescribed by the Rule requires the identification of intended witnesses. Only the number of intended or expected witnesses must be exchanged.

That said, one of the purposes for the adoption of the current civil rules was the

avoidance of trial by ambush or surprise, and in this spirit counsel in civil matters should advise opposing counsel of the names ofintended witnesses, especially if asked. But, there is no absolute requirement to provide the names. [80] It is within the discretion of the trial judge to grant or refuse a postponement based on one party calling an unanticipatedwitness.

That exercise of discretion would depend on such factors as whether counsel had previously refused to provide the names ofintended witnesses, the degree of importance of the evidence intended to be given by the witness, the anticipated length of trial, the spanof time since the start of litigation, any previous delays and available means, including discovery, to prevent surprise during trial (theapplicable principles are described in Allen v. Stone (1996), (NL CA), 146 Nfld. & P.E.I.R. 308 (Nfld.C.A.); Tarrant v. Manufacturer’s Life Insurance Co. (1993), (NL SC), 113 Nfld. & P.E.I.R. 162 (Nfld.

T.D.); EastPoint Condominium Corporation v. Gibraltar Development Ltd., 2019 NLSC 59). [81] The Edgecombes never applied to postpone the trial, but they argued on appeal that the trial judge effectively exercised herdiscretion in deciding in case management that the trial would proceed. Accepting without deciding that the trial judge exerciseddiscretion, the Edgecombes have not demonstrated that the trial judge erred in principle. [82] This ground of appeal also should be dismissed. CONCLUSION and DISPOSITION [83] I would dismiss the appeal. [84] The trial judge made a separate decision on costs of trial.

Neither party appealed from that order. [85] As Ms. Nicholas was successful in this appeal, she should be entitled to her costs of appeal against the Edgecombes, taxed onColumn 3. The Second Respondent, Dr. Edgecombe’s executor, appeared on the appeal as a necessary party and for the assistance ofthe court. The Second Respondent should be entitled to its costs on appeal, taxed on a solicitor and client basis, and paid from Dr.Edgecombe’s estate. _____________________________ D.M. Boone J.A. I Concur:_____________________________ F.P. O’Brien J.A. I Concur:_____________________________ W.H. Goodridge J.A.