Foster Estate v. Ball, 2018 NSSM 35

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Foster Estate v. Ball , 2018 NSSM 35 Claim No: SCCH 464001 BETWEEN: ESTATE OF EDITH ELLEN FOSTER Claimant -and – LISA BALL Defendant Quy Linh represented the Claimant. Barry Mason QC, represented the Defendant. Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. DECISION ( 1 ) This is a claim for the payment of a debt brought by Donna Wournell, who is named executrix of the Estate of Edith Ellen Foster. The Defendant, Lisa Ball, is Ms.

Wournell’s niece and Mrs. Foster’s granddaughter. It is acknowledged by the parties the late Mrs. Foster advanced $10,450 to Ms. Ball and she has repaid $5950. There is a dispute of whether this was a loan or a gift. The documents governing the loan consist of the original note and a second described as a receipt. The first note contains a statement terminating any remaining liability on Mrs. Foster’s death. The second contains no such reference. The Claimant argues the “Receipt” is a new agreement. ( 2 ) For the reasons stated below, I have found in favour of the Defendant and dismissed the claim with costs.

( 3 ) This matter involved several procedural questions which I shall address below. Probate of the Will and Style of Cause ( 4 ) Edith Ellen Foster died on May 4, 2017, according to documents submitted in evidence. The Claimant has tendered into evidence a true copy of Mrs. Foster’s will dated September 7, 2016 (“the Will”). In the Will she named her daughter, Donna Wournell, as executrix and Joanna Ellen Morris, her granddaughter, and Ms. Wournell’s daughter, as alternate. As the 30 day survivorship clause has passed, the will leaves everything to Ms. Wournell including the forgiveness of the mortgage on Ms.

Wournell’s house in favour of Mrs. Foster. ( 5 ) In other words, assuming this is Ms. Foster’s valid and last will, Ms. Wournell is the beneficiary of any debt owed to Ms. Foster. ( 6 ) The Will has not been probated. Mr. Mason moved the claim be dismissed. Ms. Wournell indicated she was planning to probate the will and sought an adjournment to do so. I agreed and gave her until December 31, 2017 to file a probated copy with this court.

No such document was ever filed. ( 7 ) The Small Claims Court Act and its regulations are silent on the need for a Will to be probated in order for a matter to be commenced on the death of a party. When the Act is silent, the Civil Procedure Rules provide guidance and inform the procedures of the Small Claims Court. The procedure is addressed by the Survival of Actions Act as well. It is not necessary to provide a fulsome review of Civil Procedure Rules 35 and 36 which deal with representative parties and executors/administrators in particular.

The discretion to appoint a representative lies with a presiding Justice of the Supreme Court. ( 8 ) In my opinion, it is sufficient to follow that procedure in Small Claims Court. In my view, it is appropriate to allow Ms. Wournell to act on behalf of the estate in this matter. However, while allowing her to represent the estate, this Court cannot confirm the Will as valid. If there are any concerns or a need to confirm its validity or authenticity, the Will should be proven in either common form or solemn form. ( 9 ) In the Notice of Claim, the Claimants are named as Edith Foster and Donna Wournell.

As she is deceased, the claim cannot be brought by Mrs. Foster in her personal name but only in the name of her estate ( Survival of Actions Act , s. 2). The claim in the name of Edith Foster is amended to “Estate of Edith Ellen Foster”. ( 10 ) Ms. Wournell would have standing only if I were to find the “Receipt” dated March 3, 2016 provided her with additional legal rights, namely a personal claim to the funds. There is nothing on the document showing any such intention. A separate document does not exist. Ms. Wournell did not advance any of the funds.

This issue was not raised by either counsel and would not have been supported by the evidence anyway. Her standing comes only in a representative capacity, assuming the Will was indeed Mrs. Foster’s last will. The claim by Ms. Wournell is dismissed for lack of standing, but without costs. The style of cause is amended as set out herein. New Evidence ( 11 ) Ms. Wournell sought permission of the Court to admit new evidence and make further submissions. I responded to the effect that such a request is highly unusual.

In order to be admissible, the evidence must not have been available prior to the hearing and it must be relevant. I gave her until the end of February to indicate if she intended to pursue the matter. On February 20, she advised that she intended to proceed although nothing further was received until May 15. ( 12 ) I have discussed the proposed submissions at the end of this decision. ( 13 ) It is sufficient to say that the proposed new evidence would do nothing to aid in the

interpretation of either document. The language used in them is unambiguous. The proposed evidence deals with the subjective intent of Mrs. Foster and, potentially, of Ms. Ball. It would not be admitted in any event. I have addressed the motion to provide new evidence at the end of this decision. These reasons for judgment are based solely on the evidence at the hearing. Background

( 14 ) According to all witnesses, Edith Foster was a kind and generous woman. She loved her children and grandchildren and frequently made gifts of money to her family to assist with various expenses. Both Mrs. Foster and Ms. Ball suffered grief when Linda Ball died tragically in 2016. It is also apparent the relationships between certain children and grandchildren are acrimonious. There was clear hostility between Ms. Wournell and Ms. Ball during Ms. Foster’s lifetime that has continued after her death. This has resulted in numerous allegations by both parties, particularly by Ms.

Wournell, about the conduct and motivation of each party. As noted several times during the hearing and my correspondence with Ms. Wournell, the acrimony is not relevant to these proceedings. I am only concerned with the

interpretation of the agreement. The Documentation ( 15 ) The documentation in evidence is very short and can be stated in full. The first document stated the following: “I, Edith E. Foster loaned my granddaughter (Lisa A. Ball) $10,450.00 on September 12, 2013 in order to purchase a 2011 Hyundai Accent. Lisa paid me $1800.00 when she sold her 1998 Honda Civic and will start making monthly payments of $100.00 starting July 18, 2014 or $50/paycheque every 2 weeks. If something were to happen to me, Lisa Ball will not owe anything.” ( 16 ) The document is dated August 21, 2014 and signed by both Mrs. Foster and Ms.

Ball. The parties confirmed Edith Foster’s signature. ( 17 ) The exhibit contains notations of payments made which were inserted by Ms. Ball. These do not form part of the document. ( 18 ) The second document states the following: ( 19 ) “This RECEIPT has been requested by Lisa Ball. The original loan to Lisa Ball for $10,450.00 was for the purchase of an automobile. Edith E. Foster and Donna (Foster) Wournell acknowledge payments to date of $5,450.00, leaving a balance owing of $5000.00 which Lisa Ball has agreed will be paid in monthly installments by personal cheque.

This agreement is dated today, March 3, 2016. All three parties will sign below.” ( 20 ) The second document is signed by Mrs. Foster and Ms. Wournell on March 3, 2016. Ms. Ball signed it on March 4, 2016. The Evidence ( 21 ) Donna Wournell was the only witness called on behalf of the Estate. Ms. Wournell testified that she was aware her mother had advanced funds to Ms. Ball, namely $10,450, in September 2013. She was of the view the arrangement was a loan. Ms. Ball was expected to pay her grandmother twice per month. The last payment was made on March 4, 2016. A receipt was signed on March 3, 2016. It is Ms.

Wournell’s submission this document is a second contract. It is acknowledged there is a balance of $4500 owing. She is also seeking interest on that amount plus costs. ( 22 ) Under cross-examination, she acknowledged that her mother's previous wills provided for other beneficiaries, including Ms. Wournell’s brother Dwight, who was removed from the Will in April 2016 and her sister, Linda Ball, who died that year. ( 23 ) She confirmed the estate was not probated. Her mother did not tell her that the funds advanced to Ms. Ball were part of a loan. Ms.

Wournell was aware of the agreement before the second document was prepared. She acknowledged seeing the bank draft for $10,450.00. The original arrangement was verbal. Ms. Ball would pay what she could afford on a twice monthly basis. The first payment was for $50. She indicated an RRSP had been set up by Ms. Ball. She confirmed the written agreement was for payments of $100 per month. She acknowledged that $5950 had been paid to date. There is $4500 owing. The claim for interest is based on bank rates of 5.1% or 4.5%, although no support for that position was advanced.

The costs were the cost of service plus filing fees. ( 24 ) Ms. Wournell confirms that her mother did not want to take legal action against Ms. Ball or make a demand for full payment of the debt. She was with her mother when she called Ms. Ball to request that payments be made again. No action had been taken after the last payment was made in March 2016. Following her mother's death, Ms. Wournell took legal action immediately on the note. She confirmed that her mother provided financial assistance to her son, Kevin. Kevin was not always prompt with payments but he always paid her back.

He had never been sued by his grandmother.

( 25 ) In redirect evidence, Ms. Wournell confirmed she only saw the original note after it was signed. The payments written on the document were by Ms. Ball not Mrs. Foster. The total payments received were $5950. She suggested to her mother that $50 a month was not reasonable. Her mother was purportedly concerned that Ms. Ball had taken out an RRSP rather than making payments on the loan. She gave evidence that she told her mother she had better sign a note. ( 26 ) Lisa Ball is a registered cardiology technician.

She resides in Bedford. ( 27 ) In 2013, her grandmother offered to help her purchase a car as she noticed her old vehicle was getting rusty. She initially declined the offer but was told by her grandmother that she wanted to help. After discussing it with her sister, Kim, and her father, she thought it appropriate to allow her grandmother to assist her. The terms initially were that nothing was to be paid. However, she indicated that once Ms. Wournell became involved, she agreed to repay her grandmother $50 biweekly or $100 a month. Between July 2014 and March 2016, she paid $5950. It is Ms.

Ball’s evidence that she was to pay whatever she could but she did not want to limit it to $1200 a year as it would take approximately 10 years to pay off the amount in full. She tendered into evidence a letter indicating that she did not want to make waves in her relationship between Mrs. Foster and Donna. More significantly, she confirmed the amount paid was the final payment. She tendered into evidence bank draft receipts showing payments on the loan. ( 28 ) In

summary, the payments made were as follows: $1800 from the sale of her old car, $2300 total payments noted at the foot of the note and $1450 in two bank drafts. ( 29 ) She testified that after her mother's death on March 17, 2016, she and her sister went to visit Mrs. Foster. She was advised by her grandmother not to make any further payments. There were never any demands for payment made by her grandmother. ( 30 ) Under cross-examination, she indicated that her sister Kim would occasionally get gifts or loans from her grandmother. She was aware that Joanne and Kevin received money.

She indicated she was always close to her grandmother. She maintains the advance was a gift but it should have been in writing to that effect. It was written so the rest of the family was not inclined to think Mrs. Foster was helping one family member more than the other. The receipt was requested by Ms. Ball to ensure all payments were confirmed and acknowledged. She confirms the agreement looks like a loan. ( 31 ) Barbara Walsh is a daughter of Edith Foster and a sister of Donna Wournell. She is Lisa Ball’s aunt. She describes her mother as very generous when it came to assisting her children and grandchildren.

Ms. Walsh received money. Her son also received money. Any attempts to pay her mother back were met with resistance. Mrs. Foster discussed with Ms. Walsh that she had advanced money to Donna's son, Kevin, when he was starting school. She described the relationship between Mrs. Foster and Ms. Ball as close, noting that Lisa was quite involved with her grandmother during her life. Ms. Walsh was aware of the funds advanced. ( 32 ) Under cross-examination, she confirmed she had received money from her mother but paid her back “100% of the time”. The arrangements were always verbal.

She recalls borrowing money either two or three times. The terms were always that she repaid the money when she could. There was no time limit. Her son, Phillip, borrowed $3000 or $3500 to purchase a car. Ms. Foster refused to accept the money when he attempted to pay it back. She described her relationship with her mother as very close until Ms. Wournell moved into the house, then her mother turned against her. She would attempt to visit and her mother would not allow her in the door.

Issues - Was the financial arrangement a gift or a loan? - If the arrangement was a loan, what are the terms? - Was the loan in effect at the time of the demand, namely after Mrs. Foster’s death? ( 33 ) For the following reasons, I have found the arrangement was a loan which terminated on Mrs. Foster’s death. The Law

(34) No case law has been provided in support of either party’s position. To begin, I turn to the questions posed in cases of contractualinterpretation.

(35) The leading case in Canada relating to contractual

interpretation is the Supreme Court of Canada case of Eli Lilly & Co. v.Novapharm Ltd., (SCC), [1998] 2 S.C.R. 129: “The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read inlight of the surrounding circumstances which were prevalent at the time.

Evidence of one party’s subjective intention has no independentplace in this determination.......Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face......However, to interpret a plainly worded document in accordance with the true contractual intent of the parties is not difficult, if it ispresumed that the parties intended the legal consequences of their words.”

(36) This case was considered by Justice D. Timothy Gabriel in Innotech Aviation v. Skylink Express Inc., 2017 NSSC 176. After areview of the law stated in Eli Lilly and the Supreme Court of Canada case of Sattva Capital Corporation v. Creston Moly Corporation,2014 SCC 53 , 2014 S.C.C. 53, his Lordship stated the following: In Halifax Regional Municipality v. Canadian National Railway Company, 2014 NSCA 104 , 2014 N.S.C.A. 104, Fichaud J.A.summarized the effects of both Eli Lilly and Sattva Capital as follows: 40. In short, my view is this. The text of

article 2.2, read in the context of the entire written Agreement, supports the judge’sinterpretation. Evidence of the parties’ purely subjective intentions cannot alter the parties’ mutual intentions that are objectivelymanifested by the contractual wording of their written and signed Agreement. The surrounding circumstances comprise the objectiveevidence of the background facts, either known or which reasonably ought to have been known to both parties are or before thecontract’s signature. That evidence was properly admitted before Justice LeBlanc. The judge did not rely on that evidence. But theconsideration of those surrounding circumstances supports the judge’s

interpretation of

article 2.2. [22] While the foregoing is not nearly exhaustive, it is certainly representative of the state of the law insofar as it pertains to theprocess of contractual

interpretation. I conclude that I am to attempt to determine “the mutual and objective intentions of the parties asexpressed in the words of the contract” (Sattva Capital, supra, para. 57). [23] In so doing, I am entitled to consider the surrounding circumstances to the extent necessary to ascertain the parties’ mutual andobjective intentions, but must remain rooted, first and foremost, in the text or words with which the parties have chosen to expressthemselves.

Patently, this does not confer upon me a license to rewrite the contract. “Surrounding circumstances” as noted in Sattvaatpara. 58 consist “… only of objective evidence of the background facts at the time of execution of the contract … that were or reasonablyought to have been within the knowledge of the parties at or before the date of contract.” Findings Gift vs. Loan

(37) The first question in determining the validity of the contract is if the arrangement was indeed a gift or loan.

(38) On August 21, 2014, Ms. Ball and Ms. Foster signed a note indicating that Mrs. Foster loaned her granddaughter $10,450 onSeptember 12, 2013 in order to purchase a car. She paid her grandmother $1800 when the Honda Civic was sold and agreed to makemonthly payments of $100 starting July 18, 2014, or $50 per paycheque every two weeks. She made payments of varying amountsbetween July 18, 2014 and September 17, 2015, along with payments of $400 and $950 on November 16, 2015 and January 7, 2016. OnMarch 3, Ms. Foster and Mrs. Wournell signed the second document which Ms.

Ball signed on March 4 confirming the original loan wasfor $10,450 for the purchase of an automobile. Mrs. Foster and Ms. Wournell acknowledged payments to date of $5450 leaving a balanceowing a $5000. It then states that the balance will be paid in monthly installments by personal cheque. It was their intention the loanwould cease on payment of the full $10,450 or on Mrs. Foster's death. This was not a gift. It was a valid debt.

(39) The language is clear and unambiguous. The arrangement was a loan; a finding reinforced by Ms. Ball’s making payments ofvarying amounts to Mrs. Foster. The Terms of the Contract

(40) The terms of the document were a loan of $10,450 payable in monthly amounts of $100 or $50 every two weeks. Ms. Ball’sadherence to that was sporadic. She would occasionally pay more and other times pay none at all. The initial note was signed in August2014. Mrs. Ball died in September 2017, 36 months later. In other words, approximately $3500 or $3600 would have been paid. Therewere stretches of time without payments. Ms. Wournell was tracking the loan with Mrs. Foster. It seems consistent that Ms. Wournell

was either managing her mother’s finances or helping her in that regard. She became concerned and she and Ms. Ball had disagreements about the amounts being paid. Ms. Ball requested a receipt to show the amounts paid to date. This resulted in the second document. It is necessary to consider the language of the agreement. Again, it is unambiguous. ( 41 ) The document states that $5450 was owing. The promise which was extracted was for monthly payments to continue. No new payment amounts were stipulated. No other changes were made. It was an acknowledgement by Ms.

Ball that she was required to make monthly payments. ( 42 ) No evidence was called as to why Ms. Wournell felt obliged to sign the document. She did not lend the money. There is no evidence that she was acting under a power of attorney. She was for all intents and purposes a spokesperson for her mother. As noted previously, there was no evidence to suggest the debt was assigned. ( 43 ) Ms. Wournell seeks interest at what she opined was a rate of interest offered by the banks. The document does not provide interest.

If the claim had been allowed, the Court had the discretion to award prejudgment interest from the date of demand for payment. ( 44 ) I am satisfied on the evidence that the contract consisted of a promise to repay $10,450 in exchange for the loan. Its terms included the condition that payment of the obligation was to cease on Mrs. Foster’s death. The effective date was August 21, 2014. The Receipt was simply an acknowledgement of the activity up to March 3, 2016.

Status of the Loan at Death ( 45 ) The Note contains the provision that “If something were to happen to me, Lisa Ball will not owe anything.” It is clear the debt was to terminate on death. I do not find this instrument to have been testamentary. I do not find there was a lack of consideration. ( 46 ) Three weeks later, Ms. Ball sent a letter to her grandmother which included confirmation the balance of the loan was gifted to her ( 47 ) If I am wrong in my

interpretation of the contract, then I find the actions of the deceased, namely not responding to Ms. Ball’s letter of March 23, 2017, were confirmation of the release of the debt. ( 48 ) Finally, the onus was on the Claimant to establish the loan remained valid at the date of the hearing, i.e. after her mother’s death. In most circumstances, debts continue after the death of the deceased and become an asset of the estate. The evidence in this case established otherwise. I find Ms. Wournell has not discharged the onus upon her.

Conclusion ( 49 ) For the foregoing reasons, the claim is dismissed with costs to the Defendant against the Estate. Costs ( 50 ) Typically, costs follow the result. I am prepared to hear from the parties on costs to be awarded to the Defendant in accordance with s.15 of the Small Claims Court Procedures and Forms Regulations . In this instance, there was no filing fee paid by the Defendant. The Small Claims Court does not provide a substantial indemnity in the same way that the costs awarded in Supreme Court might under Civil Procedure Rule 77.

In most Small Claims cases, the Defendant has not incurred costs which are allowable. Accordingly, the Defendant shall have one week from the date hereof to advise the Court if she intends to seek costs, otherwise none shall be awarded. If I receive such a submission, Ms. Wournell shall be given the opportunity to make submissions on quantum. Provisional Assessment of Damages ( 51 ) Had the Estate been successful in proving the claim, I would have ordered Ms. Ball to pay to the Estate $4500.00 plus prejudgment interest of 4% or $198.00 plus her filing fee. Ms. Wournell did not have standing.

She would not have been awarded anything in her personal name. Submissions and Evidence Post Hearing ( 52 ) There are several key cases dealing with the introduction of new evidence after the closing of evidence. These have been summarized by my colleague, Adjudicator Augustus Richardson, QC, in Livingston v. Apogee Properties Inc. , 2016 NSSM 43 :

“[10] I am satisfied that an Adjudicator has the power in a proper case to permit a party to call new evidence after it has closed its case. I have reviewed the following decisions relied upon by both counsel: Dhawan v. College of Physicians and Surgeons (Nova Scotia) 1998 NSCA 83 ; Griffin v. Corcoran 2001 NSCA 73 ; AB v. CD 2014 BCSC 1676 . That review suggests that the following points ought to be considered: a. Was the evidence in question reasonably available to the party prior to the close of his or her case, or is it new evidence that could not reasonably have been discovered prior to that time; b.

Where in the proceedings is the application made—at the end of the party’s case, or after all of the evidence of all parties is in, or after the decision of the court is taken under reserve; c. What prejudice, if any, would the opposing party experience by reason of the re-opening; d. The importance of maintaining the principle of finality—that is, the requirement that parties bring forward their whole case at one time rather than piecemeal; and e.

Whether it is in the interests of justice that the case be re-opened—that is, whether a miscarriage of justice would occur if the proposed evidence was not received. [11] Added to that is the concern, expressed by s.2 of the Small Claims Court Act , that claims ‘are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.’” ( 53 ) The hearing was held on November 9, 2017. Ms. Foster first wrote the Court a letter requesting time to have Mrs. Foster’s will probated. I agreed to that request.

She wrote back with a letter dated December 29, 2017 which did not reach me until February 7, 2018 due to issues with how the envelope was addressed. In a letter dated February 12, 2018, I advised the parties as follows: “Your respective cases were both closed following the hearing on November 9. Typically, new evidence is not permitted once the parties have closed their cases.

The reasons behind that are several, all stemming from the courts’ reluctance to admit evidence that could have been made available at the hearing with proper diligence and the inherent unfairness of giving a party another “kick at the can”. There is nothing in your letter addressing the nature of the evidence you propose to call, how it is relevant and when it became available. Without more, I am inclined to deny your request. There are rare circumstances when the Court will grant leave to introduce new evidence such as if the evidence was not available at the time of the hearing.

Of course, the evidence must be relevant to the issues, in this case the financial arrangements between Mrs. Foster and Ms. Ball. It is not enough to have simply thought of a new argument or approach to address a matter that was raised at the original hearing. If you intend to seek leave of the court to introduce new evidence, I recommend getting legal advice on the issue as soon as possible.” ( 54 ) Ms. Wournell advised the court by telephone on February 20, 2018 that she intended to seek leave.

The Court received her letter dated May 10, 2018 on May 15. ( 55 ) The package contained a ten page submission, a handwritten letter purportedly written by Mrs. Foster to Ms. Ball’s sister. Kim (while I have no reason to doubt it was Mrs. Foster’s writing, I cannot conclude that it is until tested in court) and a series of e-mails. The emails were already in evidence. ( 56 ) I have read the letter purportedly written by Mrs. Foster to Ms. Ball’s sister. She had a different perspective at the time of Ms. Ball’s financial arrangements, particularly Ms. Ball’s decision to invest in an RRSP through her employer.

There is no mention of making demands for payment. Indeed, Mrs. Foster seemed disappointed, but accepting of the financial arrangements. She describes the initial note as intending to terminate on her death. It is clear from Ms. Ball’s evidence that Ms. Ball and her sister had smoothed things over. To me, it is irrelevant to the

interpretation of the document. The document is clear in its language. ( 57 ) The letter was in Ms. Wournell’s possession but not tendered into evidence. Several of its key points were put to Ms. Ball in

cross-examination. If admitted, the balance of its contents would have served to potentially support the Defendant’s case and weaken that of the Estate. ( 58 ) I find the documents were in the possession of the Claimants the entire time and could have been made available without difficulty. The parties were represented by counsel, both of whom appeared to provide very capable representation. ( 59 ) Ms. Wournell also submitted a lengthy letter as her submissions. The first part underscores that the loan was a loan. As indicated, this was clear from the documents.

Much of the submissions pertain to the acrimony, with allegations and counter allegations against Ms. Ball. As indicated, the evidence of the acrimony is unhelpful and irrelevant. It underscores the need to document financial arrangements, whether they are gifts or loans. ( 60 ) There are submissions dealing with the matters leading up to the loan. There was no evidence which I accept that proved fraud, undue influence or duress in the execution of the documents. The consensus is the loan was entered into freely by the parties. The end result was the unambiguous documentation. Ms.

Ball was inconsistent with her payments but she was ultimately released. ( 61 ) The last page of the letter deals with claims of relief sought by Ms. Wournell personally. As noted, Ms. Wournell does not have standing in her personal capacity. Even if she did, the amounts claimed are beyond the jurisdiction of the Small Claims Court Act . ( 62 ) Of concern is a note at the bottom of page 5 of Ms. Wournell’s submissions. She referred to the testimony of Ms. Ball: “On November 9, Ms. Ball testified under oath on the stand that: 1. ‘From (Mrs.

Foster) could not write, she could sign her name but she could not write.’... 2. Originally From offered to co-sign for a loan not finance the loan herself, another lie.” ( 63 ) I thoroughly examined my notes from the hearing and the exhibits. I found no such reference to either point. These would have been important points to note. After careful examination of all materials, I find no such testimony was given by Ms. Ball. Such a flagrant untruth casts serious doubt on the balance of Ms. Wournell’s assertions and requests. ( 64 ) In

summary, I find the evidence and submissions to be considered were in the possession of the Claimant and could have been introduced into evidence at the hearing. Based on the content of Ms. Wournell’s letter and the letter purportedly written by Mrs. Foster, neither would add anything relevant in the face of the plainly written documents. It would not result in a miscarriage of justice to deny their admission into evidence. Ms. Wournell’s motion is denied.

Summary ( 65 ) The motion to admit further evidence is denied. ( 66 ) The claim by Edith Foster is ordered changed to “Estate of Edith Ellen Foster”. ( 67 ) The claim by Donna Wournell in her personal name is dismissed without costs and her name struck from the style of cause. ( 68 ) The Claim by the Estate of Edith Ellen Foster is dismissed subject to any claim by the Defendant for costs. Dated at Halifax, NS, on June 25, 2018; ______________________________ Gregg W. Knudsen, Adjudicator

Original: Court File Copy: Claimant (

s) Copy: Defendant(s)