Reid Estate v. Reid Estate, 2010 ONSC 2320

CITATION: Reid Estate v. Reid Estate, 2010 ONSC 2320 COURT FILE NO.: 05-25/06 COURT FILE NO .: 01-0327/06 COURT FILE NO .: 01-0328/06 COURT FILE NO .: 06-CV-308005PD3 DATE: 20100428 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE ESTATE OF LAURA EVELYN REID, Deceased B E T W E E N: ) ) BRUCE ALLAN REID, Executor of the Estate of Laura Evelyn Reid Applicant/Respondent - and - LYNN THOMAS REID, Executor of the Estate of Laura Evelyn Reid Applicant/Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) David McGhee , Counsel for Lynn Thomas Reid Bruce Allan Reid , self-represented ) ) HEARD: March 15-19 and 22-24, 2010 M.A. CODE J. REASONS FOR JUDGMENT A. OVERVIEW

[ 1 ] This case involves a dispute between two elderly brothers over their deceased mother’s estate. The two brothers, Lynn Reid and Bruce Reid have commenced three separate originating applications, an action and a cross-application against each other. All five proceedings make various claims in relation to their mother’s estate. These five matters were joined together by Order of Lissaman J., dated July 13, 2006, and were heard by me at a single trial that lasted eight days. [ 2 ] The older brother, Lynn Reid, is now 69 years old. The younger brother, Bruce Reid, is 63 years old.

Neither of them is working at present, neither of them has any significant income or assets and they both need the proceeds from their mother’s estate. Unfortunately, that estate has now been substantially depleted by this litigation. [ 3 ] The mother, Laura Reid, died in Toronto on May 16, 2005. She had lived a long, productive life and died at age 91. There was no prior warning of imminent death, such as illness or obvious decline. She was living at home, together with her two sons, who had moved back into her house in Toronto at different points in the preceding years.

She was of sound mind and was reasonably independent and healthy for someone age 91. [ 4 ] The father, Thomas Reid, predeceased his wife by just over one year. He died on May 8, 2004 at age 90. Unlike his wife, he was suffering from serious illnesses and disabilities at the time of his death and had been moved into a nursing home. [ 5 ] The father made a simple clear will on July 27, 1990 leaving his entire estate to his wife, Laura Reid, subject only to two small bequests of $5,000 each to his two sons.

He had worked for most of his life as an engineer at Bell Telephone and his assets included the matrimonial home located at 58 Redcar Avenue (hereinafter “Redcar”) and some savings that were invested in stocks and bonds. The matrimonial home was held in joint tenancy with his wife and so it passed directly to her, by survivorship, upon his death. There were no debts. [ 6 ] Laura Reid also made a simple clear will on August 11, 2003, the year before her husband, Thomas Reid, died. She left her estate equally to her two sons and she appointed both of them as her Executors and Trustees.

She had worked at sales jobs for much of her life, particularly at the Hudson’s Bay Company, and her assets were the Redcar home and the savings. Again, there were no debts. [ 7 ] The matrimonial home at 58 Redcar Avenue is a one-storey bungalow and it was appraised at $355,000 on June 30, 2005, shortly after Laura Reid’s death. Its present worth is now likely to be something more than this. The liquid assets in the estate were ordered paid into court on August 29, 2007 by Karakatsanis J. and they totaled $267,000 at that time.

Some additional stocks and bonds that were not liquidated were worth approximately $60,000 at the time and they are still held by the estate. Like the house, they are presently worth something more than before. [ 8 ] It can be seen that the total value of all Laura Reid’s assets was approximately $682,000.

According to her will, she intended this amount to be split equally between her two elderly sons who were both living with her when she died and who both had real need for their inheritance. [ 9 ] This apparently simple picture became complicated due to a number of circumstances which have led to the present litigation. First, the two brothers share an intense dislike for each other and they have been unable to work out any practical accommodations or compromises in the administration of the estate.

Second, Laura Reid spoke to a lawyer, shortly before she died, who was not the lawyer who had prepared the two simple clear wills for her and her husband. With the help of this other lawyer, the mother purported to transfer title to the matrimonial home into joint tenancy with her younger son Bruce Reid. This was on April 23, 2005, that is, less than one month before she was to die. The transfer occurred in circumstances that are troubling.

The above events, predictably, led to the present litigation which focuses mainly on the question of whether the matrimonial home is part of the estate or whether the April 23, 2005 transfer was effective in removing the home from the estate and giving it exclusively to Bruce Reid. [ 10 ] The litigation has been expensive. Judges of this Court have ordered various payments to the parties out of the funds held in court. Each party has received a total of $103,000 which has been used primarily to fund the litigation.

An initial three-day trial was conducted in 2008 before Wright J., with both sides represented by counsel, but Wright J. eventually declared a mistrial. Bruce Reid then discharged his counsel and proceeded to the present trial representing himself. Lynn Reid remains represented by counsel. [ 11 ] It can be seen that the case has now occupied eleven days of trial and $206,000 has been paid out of the estate, mainly to finance the litigation.

All that remains of Laura Reid’s assets is the house and approximately $73,000 of the monies paid into court and $82,000 worth of stocks and bonds that are still held by the estate. Any award of costs paid out of the estate will likely use up all of the remaining assets other than the house.

[12] This depletion of the estate can fairly be described as a tragedy, from the perspective of the parents, who surely did not intendthis result after their long, productive and responsible lives. [13] The five separate originating applications, action and cross-application initiated by the parties raise numerous issues, some ofwhich were not pursued at trial. There are six issues that were pursued: (

i) Whether the transfer of title to the Redcar home dated April 23, 2005, from Laura Reid to Bruce Reid and Laura Reid injoint tenancy, was valid or effective.

There are a number of suspicious circumstances surrounding the transfer including: the fact thatthe new lawyer never met with Laura Reid; the advice and instructions between the lawyer and client are fraught with uncertainty; noone ever witnessed Laura Reid’s signature on the relevant documents; there are questions as to whether there was “delivery” in law ofthe transfer documents; there is suspicion of forgery; and the transfer was never registered on title until after Laura Reid’s death andafter steps had already been taken by the estate lawyer who was proceeding to probate the will.

It is agreed that Bruce Reid bears theonus on this broad issue; (ii) Whether the effect of the transfer, if valid, was to create a resulting trust rather than an outright gift of a beneficial interest inthe Redcar home. There is a presumption that the grantor intends a resulting trust, when property is transferred between a parent and anadult child for no consideration. See: Pecore v. Pecore, 2007 SCC 17 , [2007] 1 S.C.R. 795; Madsen Estate v. Saylor, 2007SCC 18 , [2007] 1 S.C.R. 838.

However, Bruce Reid submits that the transfer was for consideration, pursuant to a contract forhis services under which he cared for his mother and father during the last eleven years of their lives. He also submits that he can rebutthe presumption of resulting trust and prove that his mother intended to transfer equity in the house to him prior to her death. Lynn Reidrelies on the presumption of resulting trust and also relies on the same suspicious circumstances, summarized above in relation to thefirst issue, to infer that his mother never intended to transfer her equity in the house prior to her death.

It is agreed that Bruce Reid bearsthe onus on this issue; (iii) Whether the transfer should be set aside on the basis of undue influence. Lynn Reid submits that the relationship betweenhis brother Bruce Reid and his mother was such that the presumption of undue influence arises. Lynn Reid submits that there was thepotential for domination as Bruce Reid had “persuasive influence” over their mother and it was a “relationship of dependency”. See: Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353; Dmyterko v. Kulikowsky, [1992] O.J. No. 1912 (S.C.J.).

It isagreed that Lynn Reid bears the onus on this issue; (iv) If Lynn Reid succeeds on any of the above three issues, the effect is that the matrimonial home becomes part of the estate. In this eventuality, Bruce Reid claims quantum meruit for his eleven years of service to his mother and father, pursuant to an oralcontract, under which he alleges that he was to receive the home upon their deaths. He claims some $300,000 for these services. See: Degelman v. Guaranty Trust Co., (SCC), [1954] S.C.R. 725; Dmyterko, supra. It is agreed that Bruce Reid bears theonus on this issue; (

v) Conversely, if Bruce Reid succeeds on the first three issues, the effect is that the matrimonial home was transferred out ofthe estate prior to Laura Reid’s death. In this eventuality, Lynn Reid claims quantum meruit for his services to his parents over theyears. It is agreed that Lynn Reid bears the onus on this issue; (vi) Finally, Lynn Reid claims damages against his brother for false arrest and false imprisonment based on certain events thatoccurred on August 23, 2005, that is, some three months after their mother’s death.

On that date, Bruce Reid called the police andalleged that there was a break and enter in progress at the matrimonial home on Redcar. In fact, it was Lynn Reid who had forced abasement window in order to enter the home where he was still living. Bruce Reid had changed the locks during a few days when LynnReid was absent from the home. The police initially arrested Lynn Reid and took him into custody but released him without chargeslater that day after satisfying themselves that he was still lawfully entitled to reside on the property.

It is agreed that Lynn Reid bears theonus on this issue. [14] It can be seen that Bruce Reid bears the onus on three of the issues and Lynn Reid bears the onus on the other three issues. Bothparties have initiated different proceedings and so it had to be determined who would call their case first at a joint trial of all issues. Atthe first trial, before Wright J., Bruce Reid proceeded first as it was agreed that he bears the onus on the first two issues, which arearguably the most important issues in the case. However, he was represented by counsel at that time.

At the present trial, he asked thatLynn Reid proceed first, as Bruce Reid is now self-represented. Mr. McGhee, on behalf of Lynn Reid, agreed to call his case first. Thisgave Bruce Reid the advantage of hearing Lynn Reid’s case first before he had to present his own case.

[ 15 ] Having considered all of the evidence and the submissions, I am satisfied that the matrimonial home remains part of the estate and that proceeds of its sale are to be divided between the two brothers. I reach this result on the basis of the second issue, namely, the presumption of resulting trust. Although I have real concerns in relation to the first and third issues, it is not necessary to decide them. Much of the evidence on the first three issues over-laps but it relates most clearly to the second issue.

There was no consideration for the transfer of title and so the presumption of resulting trust applies. Furthermore, and even if the presumption did not apply, the circumstances surrounding the transfer lead to the conclusion that Laura Reid did not intend the equity in her house to pass immediately to her younger son Bruce Reid. Rather, she intended to put a larger estate plan in place that would provide homes for both of her sons, including a house for her older son, Lynn Reid. Both sons equally needed a house and their mother had a plan to provide for both of them.

She did not intend to execute only part of her overall plan, which is effectively the result that Bruce Reid is arguing for. [ 16 ] The two alternative claims for quantum meruit cannot succeed, as there was no oral contract between the mother and either of her two sons.

The claim for false arrest and imprisonment is a close case but I am satisfied that the police exercised independent judgment in arresting Lynn Reid, and that Bruce Reid did not “cause” the arrest in these circumstances. [ 17 ] In the result, Lynn Reid’s application for a declaration succeeds and the matrimonial home is held in trust by Bruce Reid for the estate. The home is to be sold and the proceeds are to be divided between the two sons in accordance with their mother’s will. All other claims are dismissed. B. THE FACTS i.

The historical or background evidence relating to events prior to 2004-5 [ 18 ] The two brothers, Lynn Reid and Bruce Reid, both testified at great length and in exhaustive historical detail about their acrimonious relationship over the past sixty years. They are two very different personalities and they obviously dislike each other. It appears that they have been in conflict for most of their lives. Indeed, Bruce Reid traces many of his difficulties to an incident early in his childhood when he alleges that Lynn Reid pushed him from the loft of a barn.

I heard detailed accounts of this incident from both brothers. [ 19 ] Most of this historical detail was of little assistance, other than to establish the obvious animosity in the relationship. Their mother, Laura Reid, was aware of the longstanding conflict and animosity between her two sons. This is an important point as it is unlikely she would do anything to create further opportunities for conflict between them, given their obviously dysfunctional relationship.

The estate plan that she was trying to complete in the spring of 2005, at the time of her death, was one in which she would make arrangements to provide homes for both of them, prior to her death. If she could have carried out this plan, there would have been less estate administration for the two sons to look after as Executors after her death. It was a sensible plan, given what she knew about her two sons. Unfortunately, she died suddenly and unexpectedly before she had put all of the pieces of the plan into place. [ 20 ] Lynn Reid left school after completing grade 10.

He never completed high school and never attended university. He clearly had a rebellious youth and once spent a month in Lakeshore Psychiatric Hospital after drinking heavily and feeling suicidal. He has worked at odd jobs for most of his life, including his own sign painting business in Niagara Falls which he operated for the last ten years of his working life, from 1995 to 2005. He has interests in music, art, sailing and environmental causes. He is something of a handy man who enjoys building things and repairing things.

He describes himself as an aging “hippie” and as a “beatnik”, who was born in 1941 and came of age in the 1950’s and 1960’s. He is a bit of a dreamer and tends to go off on tangents, when he is distracted or interested by something, but he is obviously intelligent. He has had two unsuccessful marriages, although he is still fond of his second wife. He had two children from each marriage and he was not particularly responsible in supporting his four children, who are now all adults. He had a stroke in April, 2008 and it has affected his memory and his ability to work.

He has received welfare and unemployment insurance benefits at various points in his life and he has never managed to save money or to buy a home. He has lived mainly in and around Niagara Falls where he has friends who share his interests. He moved back home to his mother’s house on Redcar in Toronto in February, 2005 as his sign painting business was in debt and he was being evicted from his residence in Niagara Falls for non-payment of rent. [ 21 ] Bruce Reid, in contrast to his brother, did complete high school and did attend university.

He received a B.Comm. from Queens University in 1971 and a B.Ed. from the University of Toronto in 1977. He is proud of the fact that he attended Queens, following in his father’s footsteps. He has a strong sense of superiority to his brother Lynn and regards himself as the one responsible son. However, much like his brother, he has never had much success in life. He was interested in business and finance and tried to work in the accounting field. This did not last and he began to work as a teacher. This line of work also did not last.

He was interested in investing and, at one point, he had made good money in the stock market. However, he lost everything in the 1987 stock market crash. He eventually moved to Kitchener where he lived on welfare for two years from 1992-1994. His dream was to operate his own business and he spent considerable time trying to develop a fish feeder for pet fish tanks. This business idea never came to fruition. He has interests in breeding and raising fish and in attracting wild birds and feeding them. He has never married and appears to have few friends.

He came home and moved in with his parents in Toronto in 1994, “with his tail between his legs” as he put it. He had been cut off welfare in Kitchener and had nowhere to go. He is clearly intelligent but he went through periods when he was troubled and had mental problems. He became depressed and withdrawn around 1984 and spent a month in the Penetang Mental Hospital. He takes medication

for a thyroid problem that affects his mood and can bring on depression. [ 22 ] What is apparent from these brief summaries of the two sons’ lives is that they both needed their mother, late in their lives, and that she took both of them in and helped them. Both were about to be turned out on the street, with no money and no home and no other family members to support them. Bruce Reid was 47 years old in 1994, when his mother took him back in, and Lynn Reid was 64 years old in 2005, when his mother took him back in.

Both testified that their mother loved them, in spite of their flaws, and was generous to them throughout their lives. Once again, this history provides circumstantial support for the estate plan that Laura Reid was trying to develop in the spring of 2005, namely to provide homes for both her sons before she died. She knew that they both needed her and were both unable to live independently without her help.

There is no suggestion from this general history that she intended to favour one son over the other. [ 23 ] Both brothers testified about various stories they had heard from their mother concerning alleged misconduct by the other brother. Bruce Reid testified about Lynn Reid’s irresponsible and sometimes criminal behavior, as recounted to him by his mother, and Lynn Reid testified about Bruce Reid’s mean and sometimes violent behavior, as recounted to him by his mother.

None of this testimony was admissible for the truth of its contents but simply served to establish that Laura Reid may have recognized at various times that her two children had obvious flaws. Again, there was nothing in these stories that distinguished one son from the other and suggested that Laura Reid might want to favour one over the other. [ 24 ] The last area of background evidence concerned the parents’ financial generosity towards their sons throughout their lives. As already noted, both Lynn Reid and Bruce Reid conceded that their parents were generous to them, particularly their mother.

Lynn Reid agreed that he received, on average, $3,000 to $4,000 a year from his parents in the form of occasional gifts. They would visit him in Niagara Falls every few months and bring groceries and help pay his bills, especially when he was operating his sign painting business from 1995 to 2005. In addition, Lynn Reid agreed that his father would give him used cars, once his father was finished with a particular car. Finally, Lynn Reid agreed that his mother was fond of his two ex-wives, especially the second one. She was also fond of his four sons who were her only grandchildren.

She helped these members of his family financially. [ 25 ] Bruce Reid agrees that his mother was generous to both sons but he believes that she had historically favoured Lynn Reid financially. He emphasizes the cars that Lynn Reid received and the help that his ex-wives and children received, whereas Bruce Reid never received cars and he had no ex-wife or children to help. Bruce Reid felt that he had tried hard to please his parents, for example, by going to Queens University, and he wanted recognition from them.

He felt that he was more deserving than Lynn Reid and yet Lynn Reid and his family received greater benefits. Bruce Reid denies that this attitude amounts to “resentment”, although in his discoveries he agreed that he did feel “resentment”.

Bruce Reid prepared a chart (Exhibit 11, Tab 3) in which he attempted to show that in two years (2000 and 2003) Lynn Reid and his family received financial benefits from the parents that totalled $6,000 and $7,000 and not just the $3,000 to $4,000 that Lynn Reid admitted that he personally received each year. [ 26 ] There is no real inconsistency between Bruce Reid’s chart showing Lynn Reid and his family receiving $6,000 or $7,000 in an occasional year and Lynn Reid’s admission that he personally received $3,000 to $4,000, on average, over the ten year period from 1995 to 2005.

What is more significant about this evidence is the attitude of disappointment and the sense of grievance that Bruce Reid harboured towards his brother about the money that Lynn Reid received from their parents during their lifetime. This is one of the suspicious circumstances to be considered below, when evaluating the purported transfer of title to the matrimonial home in April, 2005. [ 27 ] In any event, Bruce Reid’s sense of grievance and the allegation of unequal treatment is unfounded.

Bruce Reid repeatedly minimizes or simply fails to include all the financial benefits that he received upon his return home in 1994, when calculating the relative financial benefits that the two sons received from their parents during their lifetime. Bruce Reid lived at home for eleven years, from 1994 to 2005, and his mother paid him an “allowance” of $300 a month for the first six years. She then increased it to $400 a month for two years, to $450 a month for one year and to $500 a month for the last two years. Furthermore, Bruce Reid never paid any room and board during these eleven years.

Even when he occasionally had a job during this period, and was earning outside income, he never gave his mother any rent, he never bought groceries with his own money and he continued to receive his “allowance”. Finally, he made substantial amounts of money on the stock market at various points during this period, before losing it once again in the market crash of 2000-2001.

Even at times when he was worth over $400,000 in stock market assets, he never paid his mother any rent, he never paid for groceries and he continued to receive his “allowance”. [ 28 ] It is remarkable that Bruce Reid felt that he was entitled to even greater financial benefits from his parents in these circumstances and felt that he was treated unfairly compared to his older brother Lynn Reid. Free room and board for a single male adult living in Toronto is a very significant financial benefit, especially when it extends for the eleven years that Bruce Reid lived at home.

In addition, he received about $50,000 in monthly “allowances” from his parents during this same eleven year period. The total financial benefit that he received is a great deal more than what Lynn Reid and Lynn Reid’s family ever received over this same period. It was understandable that the parents paid Bruce Reid greater financial benefits than Lynn Reid since Bruce Reid did more work for the family, as will be discussed in greater detail below.

[ 29 ] I am satisfied that the evidence of financial benefits paid to the two sons by their parents during their lifetime, shows that the parents did not favour one over the other. They were generous to both sons and helped them both, according to their particular needs and responsibilities. This again suggests that Laura Reid always tried to provide for both her sons and would have wanted to establish an estate plan in the spring of 2005 that assisted both of them in a roughly equal way. ii.

The quantum meruit evidence concerning services rendered [ 30 ] Lynn Reid testified that he often did odd jobs for his parents when visiting their home in Toronto. Some of these jobs were substantial, for example, painting the ceiling or cutting up a large tree that had blown over in a storm. However, he quickly conceded that he was not paid for these jobs because he “got paid in other ways”. In this context he noted his parents’ generosity towards him and his family. The obvious inference is that he was trying to be helpful to his parents as they were helpful to him.

There is no suggestion in this evidence of a contract. [ 31 ] Bruce Reid did much more work around the home than his brother. This was partly a reflection of the fact that Bruce Reid was living in his parents’ home whereas Lynn Reid was living relatively independently in Niagara Falls and was running his own business. Bruce Reid testified that he did various jobs around the home, such as painting the ceiling, painting the verandah fence, mowing the lawn, washing the interior walls, washing and waxing the floors, shoveling snow and helping his mother in the garden.

The evidence of a neighbour, Marie Campbell, supports Bruce Reid in this regard. I am satisfied that Bruce Reid did the household chores that he claims. However, these are the ordinary chores that any son living at home would be expected to do. [ 32 ] The real basis for Bruce Reid’s claim to quantum meruit, in return for the work that he did in the home, is an oral contract that he seeks to establish between him and his mother. This claim was never clearly pleaded and I allowed Bruce Reid to amend his pleadings, at the beginning of this second trial, in order to advance the claim.

He has read the Supreme Court of Canada’s decision in Degelman , supra, and he seeks to bring himself within the principle in that case. [ 33 ] His testimony concerning the alleged contract is that it emerged and evolved over time. He moved back home in 1994 and within two years, in 1996, his father became ill and had surgery to remove part of one lung. Both brothers agree that their father declined after this operation, that he suffered from further illnesses and that he required significant care at home during the ensuing years, until he was eventually moved to a nursing home shortly before his death in 2004.

At some point, the father became incontinent and his home care became even more demanding. Bruce Reid helped his mother care for the father and this work became a feature of the alleged contract. [ 34 ] The genesis of the contract, according to Bruce Reid’s testimony, was two separate conversations that he had with his father and then with his mother about a “family tradition”. The tradition was that “the youngest gets the homestead” and so he was told that he would get the home on Redcar when his parents died.

Bruce Reid was proud and had no interest in receiving something for nothing and so he felt that he should work for the home, if he was to receive it. As he took on the role of helping his mother care for his father, and as his mother grew older and increasingly needed his help, an understanding arose between them which he describes as a “verbal contract”. The understanding was that he would get the house in return for caring for his parents. It was an understanding that “solidified over time”. [ 35 ] Bruce Reid concedes that there was considerable uncertainty to the contract.

For example, it was understood that if he got married he could “walk away from the deal” and move out. Furthermore, he would occasionally get into arguments with his mother and she would say “you’re not getting the house” or “you can move out”. When his investments in the stock market were doing well, Bruce Reid did not worry about how firm his arrangement was with his mother, as he could afford to move out and live independently.

However, when the market crashed and his investments were worth little or nothing, his “comfort level” with his living arrangement similarly declined and he would look into outside business opportunities. [ 36 ] There is no independent or documentary evidence to support this “verbal contract” and Lynn Reid knew nothing about it. It is not mentioned in the will or in the April, 2005 transfer. It depends entirely on Bruce Reid’s testimony which must be approached with

caution, given his obvious self-interest. Bruce Reid’s sense of grievance about the alleged inequality of financial benefits paid to the two brothers is another reason for caution. A final basis for caution is that Bruce Reid acknowledged feeling a sense of entitlement because he felt that he had done things that were beyond the call of duty, in caring for his parents. iii. The evidence concerning the April, 2005 transfer of title to the home on Redcar Avenue [ 37 ] The father, Thomas Reid, died on May 8, 2004.

Title to the matrimonial home was held in joint tenancy and it passed, by survivorship, to his wife, Laura Reid. Both brothers described their mother as being in good health for her age. She was strong-willed and independent, often driving her own car, shopping for groceries, visiting friends and leading an active life. She had spoken of having some kind of heart problem and she was eventually to die of a sudden heart attack at night in her own bed in her own home on May 16, 2005. This was just over a year after her husband’s death. She was 91.

There is no suggestion that she was mentally incompetent in this last year of her life. [ 38 ] Around the time of the father’s death, Lynn Reid’s circumstances in Niagara Falls were not good. His sign painting business owed various debts and his rent was in arrears. His previous landlord had been supportive and tolerant, when Lynn Reid failed to pay the rent on time, but a new landlord had taken over the property and was giving Lynn Reid ultimatums. Lynn Reid had lived at this property, a small rustic cabin on Montrose, for ten years.

He had made improvements to the property, he was attached to it and he wanted to buy it. The previous landlord had offered to sell it to him for $40,000 but the new landlord was now demanding $70,000 as the sale price. Alternatively, the landlord was insisting that if Lynn Reid wanted to stay, he had to pay the three months’ arrears in rent that he owed. The landlord agreed that Lynn Reid’s final option was to pay one month’s rent and be allowed to terminate the tenancy and vacate.

This new landlord had given Lynn Reid an eviction notice. [ 39 ] Lynn Reid discussed these options on the telephone with his mother around August, 2004. She wanted Bruce Reid to come down to Niagara Falls to see if the small cabin was worth the $70,000 sale price. She also wanted Lynn Reid to look at other houses in the area with a view to her buying one for him. Both brothers agree that Bruce Reid did visit Lynn Reid’s rented home in Niagara Falls in August, 2004, at their mother’s request, to assess the wisdom of purchasing this particular house.

Bruce Reid testified that his mother said “she wanted Lynn Reid to have a roof over his head”. In cross-examination, Bruce Reid conceded that the last he knew, prior to his mother’s death, was that she still intended to buy Lynn Reid a house. He agreed that she was interested in looking into the option of buying Lynn Reid the rustic cabin on Montrose in August, 2004. Both brothers also agree that Bruce Reid was not impressed with the property, after he had inspected it, and felt that the new price of $70,000 was excessive. Lynn Reid agreed that the deal was no longer that good.

Bruce Reid picked up the local newspaper listings for houses for sale in the Niagara Falls area before he returned home to Toronto. Lynn Reid also looked at advertisements in the paper and went to look at another home that was for sale in Port Weller and then told his mother about it. [ 40 ] These efforts to find a house for Lynn Reid in the fall of 2004 in the Niagara Falls area did not come to fruition. His mother did not like the cabin on Montrose which she had visited on occasion with her husband.

At the same time, Lynn Reid was busy trying to wind up his business and did not really devote a lot of time or energy to looking for an alternative home. In the result, Lynn Reid and his mother eventually had a telephone conversation in which she told him that she would pay one month’s rent to terminate his tenancy on Montrose and that he could move in with her at her home in Toronto. Bruce Reid was not a party to this telephone conversation but he did agree, somewhat reluctantly in cross-examination, that his mother may have asked Lynn Reid to come home.

Bruce Reid clearly agrees that the reason Lynn Reid moved back into the home on Redcar was because he had no money and he needed a place to live. Lynn Reid’s move to Toronto took place in February, 2005. [ 41 ] At the same time as these efforts were going on to find Lynn Reid a home in Niagara Falls, Bruce Reid had a brief conversation with his mother about the matrimonial home on Redcar. It was in August, 2004. According to Bruce Reid’s testimony, his mother wanted to transfer title to the Redcar home into their joint names although she did not say “joint names” or “joint tenancy”.

Bruce Reid simply assumed this. The conversation took place shortly after the death of his father, when Laura Reid was cleaning up estate matters. All she said was that “she was going to put the house in Bruce Reid’s name”. Nothing more was said. She could not find her copy of the deed to the house amongst her papers and so the initiative lapsed. In cross-examination, Bruce Reid adopted the account he had given at discoveries about this conversation.

That account was to the effect that the first conversation with his mother on this topic was in 2001, that she said she was going to put the house in their joint names, and that her purpose was to settle as many of the assets in her estate as possible before she died. Bruce Reid understood that the idea was to save estate fees and that a neighbour of theirs had done it. There was then a further conversation in August, 2004. [ 42 ] Around the same time, Laura Reid had a discussion with Bruce Reid about putting her Scotia bank account into their joint names and she actually did this in August, 2004.

Exhibit 1, Tab B18 shows cheques on the Scotia account in their joint names, beginning in August, 2004, that is, within three months of Thomas Reid’s death.

[ 43 ] Significantly, Bruce Reid conceded that the purpose of putting the bank account in their joint names was that his mother was worried that she might have a stroke or be hospitalized for some reason and she wanted Bruce Reid to have signing authority in these circumstances. In practice, these circumstances never materialized and so his mother wrote all the cheques, including cheques to Bruce Reid. He conceded that his mother maintained control over the account and the cheque books.

It seems clear that her purpose was not to gift the account to Bruce Reid but simply to facilitate payment of her bills if she was incapacitated. Bruce Reid was the son who had greater financial, business and accounting training and so it was natural to put his name on the joint account. Laura Reid had previously shared joint accounts with her husband. She had also executed a Power of Attorney on July 27, 1990, in favour of both her husband and her son Bruce Reid, giving them power to deal with her property and her money.

Bruce Reid never exercised the Power of Attorney and assumed that its purpose, like the joint bank account, was to facilitate management of her affairs if she ever fell into poor health. [ 44 ] According to Bruce Reid’s testimony, his mother’s interest in transferring the Redcar home into joint tenancy revived in November, 2004 when she spoke to a lawyer. That lawyer, Donna Campbell, is the daughter of Marie Campbell, who is a neighbour and a good friend of Laura Reid’s. They had lived in the same neighbourhood for fifty years and had raised their children there.

Marie Campbell testified that Laura Reid spoke to her, after Thomas Reid died, and said that “she had offered Bruce Reid the house and at that point in time he did not want it”. She said that “she wanted Bruce Reid to have the house”. This is all she ever said on the subject. Marie Campbell confirmed that Laura Reid was independent and active up until her death and that her death was a surprise. Marie Campbell also confirmed that Laura Reid asked for her daughter’s contact information. [ 45 ] Donna Campbell testified that she has no record and no recollection of being contacted by Laura Reid in November, 2004.

However, she does have a record in her file of a sub-search of the Reid property on Redcar dated November 16, 2004. This suggests that there was some contact about the Reid property matter at that time. Bruce Reid’s account of the contact, presumably based on hearsay from his mother, is that Donna Campbell told Laura Reid that she did not need her copy of the deed in order to effect a transfer. Donna Campbell has no recollection of such a conversation. [ 46 ] Laura Reid had never discussed her will with either of her two sons.

It was prepared by the family’s solicitor, Alan Mill, who also prepared Thomas Reid’s will and the Power of Attorney. Both brothers recall their mother attending at Alan Mill’s office on occasion but they never went in with her. The will does not refer to any particular assets, such as the house on Redcar, but simply divides the entire estate equally between the two sons. The will is dated August 11, 2003, that is, just over one year before Laura Reid’s apparent first contact with Donna Campbell in November, 2004.

Donna Campbell never asked to see the will and never spoke to Alan Mill when advising Laura Reid about estate matters in 2005. [ 47 ] Donna Campbell testified that she was called to the Ontario bar in 1974 and has practised exclusively in the area of estate planning and administration and tax matters. She did not practise in the area of conveyancing or real estate, except to the extent that it intersected with estate planning.

A transfer of real estate from a parent to a parent and child, in joint tenancy, can come up in the estate planning context for two reasons: to effect the transfer quickly upon death, without going through the estate; and in order to avoid probate fees. When she does these transactions she does not prepare the documents herself but contracts it out to a para-legal conveyancing firm. [ 48 ] Donna Campbell knew Laura Reid as a friend of her mother. She also knew the Reid boys, and grew up in the neighbourhood as a contemporary of Bruce Reid, but she did not know either of them well.

She felt that Laura Reid was astute in financial matters. Most of what she knew about Laura Reid came through conversations with her own mother. She occasionally ran into Laura Reid, by chance, while shopping in the neighbourhood. Donna Campbell lived in the same neighbourhood, as an adult, where they had grown up as children and where her mother and Laura Reid still lived. Donna Campbell would also see Laura Reid at special events at the family homes, but she had not seen Laura Reid for some two to four years prior to the events of 2005.

Donna Campbell knew that the relationship between the two Reid brothers was “not close” and was “not even cordial”. [ 49 ] Donna Campbell’s first record of her professional contact with Laura Reid is a note she made of a January 28, 2005 telephone call. Donna Campbell never did open a file for this matter and never kept dockets. Her notes were simply kept in a “pocket file” in her “general matters” file. This note of Laura Reid’s first phone call is brief.

It contains three bullet points as follows (abbreviations in the original have been removed): • not sure if they are proceeding with transfer of Redcar to herself, Lynn and Bruce; wants to speak to Bruce about it again. • wants help “cleaning up Tom’s estate”; from sounds of it, includes tax in particular. • have to see her at house. [ 50 ] Donna Campbell’s office is located in north Toronto at Sheppard and Yonge, some distance from the Reid home on Redcar in

Etobicoke. The note “have to see her at house” reflects the fact that she assumed the elderly Laura Reid would not travel to her office and so Donna Campbell would have to travel to the Reid house in order to meet. Donna Campbell never did meet with her client Laura Reid, even though she lived nearby. [ 51 ] The transfer being discussed in this first phone call was jointly to “herself, Lynn Reid and Bruce Reid”. Three days later, on January 31, 2005, this was to change as Donna Campbell received a second phone call from Laura Reid. Her note of the second call is somewhat longer.

It begins by setting out Laura Reid’s and Bruce Reid’s full names and birth dates. It then contains five bullet points as follows (again, with the abbreviations removed): • title in name of Laura and Bruce. • Lynn presently 64 years old (!); Bruce is 58 in February. • wants to transfer house to self and Bruce only.

I asked if this was consistent with her will and what it might say about division between sons (I am almost certain it provides for equal division). • she said specifically that she wants Bruce to have house because he has looked after her and Tom for many years. • she is considering buying small house for Lynn (in lieu of giving him any interest in Redcar). [ 52 ] Donna Campbell testified that she underlined the word “ only ” because this was a change from the other option being discussed, namely, a transfer to Laura Reid, Lynn Reid and Bruce Reid. This latter option was now being excluded.

Donna Campbell inquired about the will because she wanted Laura Reid to understand that the effect of the transfer was to take the property out of the estate. Donna Campbell agreed, in cross-examination, that she never did ask to see the will and she never asked a direct question or received a direct answer about what the will provided.

She simply assumed that it provided for equal division between the two sons as this is the norm. [ 53 ] It was clear to Donna Campbell in this second phone call that Laura Reid wanted her son Bruce Reid to have the Redcar house because of the care he had provided to her and her husband. However, it was also clear that she wanted to buy a house for Lynn Reid. This intention to provide a home for Lynn Reid was consistent throughout their contacts, according to Donna Campbell.

The reference in her note to it being a “small house” for Lynn Reid was meant to reflect the location of the proposed house purchase, which would be in Niagara Falls. The reference in her note to this house for Lynn Reid being “in lieu of giving him any interest in Redcar” was Laura Reid’s way of achieving equality between the two sons, according to Donna Campbell. This general intention to achieve equality never varied throughout their contacts. Laura Reid did not necessarily intend the monetary value of the two homes to be equal; she simply intended that they would both have homes.

Bruce Reid was more connected to the Redcar home and Lynn Reid was more connected to Niagara Falls and so Laura Reid intended them both to have homes in these locales. [ 54 ] The third contact between Donna Campbell and Laura Reid was the next day, February 1 st 2005, when Laura Reid left a message on Donna Campbell’s phone. The message was transcribed by Donna Campbell, after she had listened to it: Mrs. Reid left message that she was not going to send “letter” (she means death certificate); wants to get eldest boy settled before going ahead with transfer of property to Bruce.

So do not proceed with registration. [ 55 ] Donna Campbell felt she had received instructions to proceed with the transfer of the Redcar home, from the previous telephone call, and now the instructions were changed and she was not to proceed. She understood the message to be raising a concern about the mechanics of the transactions, namely, the need to purchase the Niagara Falls house for Lynn Reid (“the eldest boy”) before transferring the Redcar home to Bruce Reid. She understood the message as referring back to her previous phone conversations and as being consistent with the same overall plan.

However, Laura Reid was now changing the timing or sequencing of the steps. Donna Campbell had no knowledge that Lynn Reid was in the process of moving out of his rented home in Niagara Falls, around the time of this phone message, and was moving into the Redcar home. Laura Reid had said nothing about this to Donna Campbell and she did not interpret the message as referring to these developments as she was unaware of them. [ 56 ] The evidence of Jack Peard is consistent with the February 1 st , 2005 phone message from Laura Reid to Donna Campbell.

Jack Peard has been a good friend of Lynn Reid for over twenty-five years. He lives in Port Robinson, near Niagara Falls, and he had met Laura Reid on prior occasions both when she visited Lynn Reid in Niagara Falls and when he and Lynn Reid visited with Lynn’s mother in Toronto.

[ 57 ] Shortly after Lynn Reid moved out of his rented house on Montrose in Niagara Falls, in February, 2005, Jack Peard received a telephone call from Laura Reid. The main purpose of the call was to inquire as to whether Lynn Reid had safely moved out of the Montrose house. However, Laura Reid also mentioned that she was looking for a house for Lynn Reid. They had a general discussion about the state of the real estate market in the Niagara Falls area. [ 58 ] Jack Peard then received a second telephone call from Laura Reid in which she went into greater detail about the need to find a house for Lynn Reid.

She said that she would “like to see Lynn have a house” and she inquired about the price and availability of new houses in the Niagara Falls area. He told her that there was a new subdivision in the Port Robinson area and that the asking price is in the range of $160,000 to $170,000. Laura Reid replied, “that doesn’t sound too bad” and asked Jack Peard if he thought Lynn Reid would be interested.

Jack advised that Lynn’s dream was to build a sustainable energy home for himself but that she should raise the matter with him. [ 59 ] It is clear from the evidence of Jack Peard and Donna Campbell that Laura Reid was once again engaged in trying to find a home for her older son, Lynn Reid, in the Niagara Falls area in February, 2005.

It is also clear that Laura Reid understood that this part of her estate plan had to be coordinated with the other part, namely, the transfer of the Redcar home to Bruce Reid. [ 60 ] Donna Campbell’s third communication from Laura Reid was the above-noted February 1 st , 2005 telephone message. It had stated that Laura Reid would not be sending Donna Campbell the death certificate. This was a reference to Thomas Reid’s death certificate. The sub-search of the Redcar title had revealed that it was still registered jointly in the names of both Laura Reid and Thomas Reid.

To change the registration to reflect the fact that Thomas Reid had died and Laura Reid had survived him, the death certificate and a Survivorship Application had to be filed with the Land Registry Office. Accordingly, Donna Campbell wrote to Laura Reid on February 7, 2005 and suggested that she send the death certificate and that Donna Campbell would then prepare the Survivorship Application, transferring the Redcar title into Laura Reid’s name alone.

The letter states: This must be done whether or not you decide to proceed with transferring the title into joint tenancy. [ 61 ] Donna Campbell’s fourth and last communication from Laura Reid is the most important one. It is a handwritten note received in Donna Campbell’s office on February 16, 2005 together with the death certificate. It was presumably sent by mail although Donna Campbell never saw the envelope. The note is written on the back of a Valentine’s card that appears to have been cut up with scissors.

The front of the card has a handwritten salutation – “Dear Laura, from Tom” – and it depicts a painting of a bouquet of red and pink roses painted by an artist named R. Zavala. This handwritten note on the other side, which was the part that was of interest to Donna Campbell, states as follows: Just a short note. I decided to put only Bruce on as Joint owners. Bruce Allan Reid, Laura Evelyn Reid. I’ll get Lynn a home likely at Niagara Falls as his friends are living there.

Take care, Laura. [ 62 ] Donna Campbell felt that this note amounted to clear and unequivocal instructions to proceed with the transfer of the Redcar title into Laura Reid’s and Bruce Reid’s names, in joint tenancy. It was clear that the overall plan still included purchasing a home for Lynn Reid in Niagara Falls, indeed, Donna Campbell felt that this part of the plan was now stated with even greater certainty. She proceeded to instruct the para-legal conveyancing firm to prepare the necessary documents.

This memo of instructions, from Donna Campbell to the conveyancing firm, was not sent until March 23, 2005, over a month later, due to some communication errors. The memo states that the “consideration for this transfer will be natural love and affection between parent and child”. The memo also refers to the fact that Donna Campbell has “known them for more than fifty years”. [ 63 ] In cross-examination, Donna Campbell agreed that the proposed transfer was part of a larger estate plan and that one of its purposes was simply to avoid estate administration fees.

She also agreed that the house was a very large asset and its transfer had serious implications for the estate. The overall plan was to transfer one house to Bruce Reid, buy another house for Lynn Reid, achieve a general equality in treatment of both sons and save estate fees. She agreed that the final communication from Laura Reid, in the February 16 th , 2005 note, was not directed to Donna Campbell by name, was not dated, did not identify the property, was not signed in Laura Reid’s full name and was never discussed in any subsequent telephone call or meeting.

She never spoke with or met Laura Reid again after receiving this brief note. She did not regard the format of the note – on the back of a private Valentine’s card from a husband to his wife – as odd. She agreed that the transfer was clearly for “love and affection” and for no consideration, thus raising the presumption of resulting trust. In spite of this, she never discussed the distinction between gifts and resulting trusts with Laura Reid. She also did not ask about the total size of the estate and whether the other assets were sufficient to purchase the house for Lynn Reid.

In this regard, she also did not discuss the timing issues, that is, what would happen if she completed only part of her plan (the transfer to Bruce Reid) and then died before completing the other part (the house purchase for Lynn Reid). She never discussed whether it would be better, in these circumstances, to simply amend the will in order to effect her overall purpose. Finally, Donna Campbell agreed that Laura Reid’s overall plan or purpose of giving houses to both sons and saving probate fees would have worked if the house purchase for Lynn Reid and the

transfer to Bruce Reid had both been effected prior to her death. She agreed that the purpose of saving probate fees could be achieved by Bruce Reid holding the legal title to Redcar in trust, for the benefit of both sons. This was simply never discussed. [ 64 ] The para-legal conveyancing firm prepared the three documents requested by Donna Campbell, namely, the Survivorship Application relating to Thomas Reid’s death, the transfer of title into Laura Reid’s and Bruce Reid’s names in joint tenancy and a General Application removing executions from the Redcar title.

Donna Campbell received these documents on March 29, 2005, reviewed them for accuracy and then forwarded them by mail to her client Laura Reid. There was a further two week delay at this stage as the covering letter to Laura Reid, enclosing the three documents for Laura Reid’s signature, is dated April 14, 2005. The covering letter does not provide any further legal advice or explanations about the three documents with the exception of the General Application to remove executions which is explained.

In particular, there is no explanation as to the legal effect of the transfer, its purpose or any alternative ways of achieving the client’s purpose. The letter simply asks Laura Reid to sign the documents and tells here where to sign. [ 65 ] While these developments were taking place in Donna Campbell’s office, during the months of January, February, March and April of 2005, Lynn Reid had moved back into his mother’s home on Redcar in Toronto. Once again, there was considerable detailed evidence from the two brothers about Lynn Reid’s move.

Both gave conflicting evidence as to what their mother had said to them about the reasons for the move. Lynn Reid’s evidence cast Bruce Reid in a poor light. Bruce Reid’s evidence cast Lynn Reid in a poor light. None of this hearsay is admissible for its truth and, at best, reflects on Laura Reid’s state of mind or awareness of her two sons’ failings. There was also conflicting evidence from the two brothers about the various disputes and acrimony, including a possible assault by Bruce, that surfaced almost immediately after the move.

I do not need to resolve these conflicting, uncorroborated and self-serving accounts. What is important is that both brothers agree that Laura Reid did not take sides and would brush off the disputes in an attempt to create some degree of family peace and harmony.

Her awareness of these conflicts between her two sons serves to emphasize the wisdom of her overall estate plan, namely, to settle homes on both of them by moving assets out of her estate, prior to her death, in a coordinated way. [ 66 ] Lynn Reid testified that about a week after he had moved, together with his two cats, his mother had a private conversation with him about the house on Redcar. She asked him if he wanted to live in the house or if he wanted an interest in the house.

Significantly, Lynn Reid concedes that he told his mother that he did not want to live in the house on Redcar , that his brother Bruce Reid had lived there and would want to live there and should stay there. Lynn Reid suggested that some other arrangement could be made for him.

According to Lynn Reid, Laura Reid also said that she wanted to clear up some aspects of her will or her estate, that she was thinking of transferring the house to save probate fees and that she was talking about putting the house in joint names. [ 67 ] A few weeks later, Lynn Reid had a second conversation with his mother about the same topic. He asked her what would happen if she died; could Bruce Reid just claim it as his house and kick him out?

Laura Reid reassured Lynn Reid that this could not happen, that she would not just put the house in Bruce Reid’s name and that it was all looked after in her will. [ 68 ] Lynn Reid had great difficulty recalling these conversations when testifying. They took place five years ago, he has no notes and he had to refresh his memory from his discovery transcript. Since the date of the discoveries, he has had a stroke and he acknowledged that the stroke has affected his memory.

Although these conversations are of some importance to Lynn Reid’s self-interest, it is significant that they also work against his self-interest because he freely acknowledges that he effectively told his mother to give the house on Redcar to his brother Bruce Reid and to provide for him in some other way. This aspect of his account helps to give it the ring of truth.

Equally importantly, Lynn Reid’s account of these two conversations is broadly consistent with Donna Campbell’s evidence as it suggests that the transfer of Redcar was designed mainly to save probate fees and that her overall estate plan was still as set out in her will, namely, to provide in a roughly equal way for both sons.

It is beyond dispute that Laura Reid intended to buy Lynn Reid a house in Niagara Falls and this fact is consistent with the tenor of these two conversations, as recalled by Lynn Reid. [ 69 ] One final point to note about Lynn Reid’s conversations with his mother concerning the estate plan, prior to her death, is that there are two reasonably contemporaneous records of what he understood. Donna Campbell had a telephone conversation with Lynn Reid on June 10, 2005, less than a month after Laura Reid’s death.

Donna Campbell told Lynn Reid that she felt she had instructions to transfer title to Redcar into Bruce Reid’s and Laura Reid’s names in joint tenancy.

According to Donna Campbell’s note to her file, their conversation proceeded as follows (with the abbreviations removed): • she [Laura Reid] had told me [Donna Campbell] that she was going to make arrangements to give him [Lynn Reid] money, or buy herself, property for him in Niagara Falls – just didn’t happen before her death. • Lynn advised they had talked about this, but waiting until end of year – wanted to confirm amount of his Old Age Security and Canada Pension Plan (he turns 65 in January 2006) so that they would know how much in carrying costs (probably taxes and insurance only) he could manage before purchasing any property.

[ 70 ] Shortly after this telephone conversation with Donna Campbell, Lynn Reid retained and instructed his own counsel. That counsel, Tony Graci , wrote to Donna Campbell on June 29, 2005 setting out Lynn Reid’s position: …the reason for the proposed Transfer was to avoid taxes and probate fees. My client’s consent was obtained prior to the execution of the Transfer by the deceased, on that basis only. My client consented on the basis that the property would be shared with him, as to a 50% interest, after the death of Laura Reid.

He did not give up his right to the property. [ 71 ] The above two records of Lynn Reid’s understanding of his mother’s estate plan were made in June 2005 and are much more reliable and detailed than his present recollection some five years later and after he has had a stroke.

Nevertheless, there is a broad consistency to his various accounts: he consented to a transfer of Redcar into a joint tenancy that named Bruce Reid; the purpose was to avoid probate fees; it would not affect his mother’s overall estate plan to treat them equally; and, in particular, she intended to buy him a house in Niagara Falls as part of the plan. [ 72 ] Donna Campbell agreed, in cross-examination, that Lynn Reid’s understanding of the transfer of title to Redcar, as set out in Tony Graci’s June 29, 2005 letter to her, was a legally feasible way of achieving the purpose of saving probate fees.

In effect, title would pass to Bruce Reid in trust and for the benefit of the estate. However, she never had a discussion with Laura Reid about Bruce Reid holding title in trust or about the law of gifts and resulting trusts. [ 73 ] As summarized above, Donna Campbell had sent the three legal documents relating to the proposed transfer to Laura Reid, by letter dated April 14, 2005, and had asked her to sign them. The account of what happened next is less than clear as no one witnessed Laura Reid signing the three documents. Donna Campbell never met with or spoke to Laura Reid to confirm her signatures.

Bruce Reid did not witness her signatures. Lynn Reid never saw the documents. The documents do not provide for a witness to the signatures. When Donna Campbell received the signed documents back at her office in late April, 2005 they were not accompanied by a covering letter from anyone and Donna Campbell never saw the envelope in which they presumably arrived. [ 74 ] Bruce Reid provided some evidence about the documents. He recalled the letter from Donna Campbell dated April 14, 2005, with the legal documents enclosed, arriving in the mail.

He would bring in the mail and put it on the table, without opening it, so he did not see his mother open the envelope. However, he testified that his mother gave him two of the legal documents to sign two days later. He took them into his bedroom and left them there for a couple of days. He eventually signed them and dated them on April 23, 2005. His mother’s signature was already on the two documents. They are two Acknowledgements with the draft Transfer document attached to one and the draft Application General relating to the executions attached to the other.

Donna Campbell had included a line for Bruce Reid’s signature on these two Acknowledgements as he was one of the transferees. The third document was the Survivorship Application and Bruce Reid never saw it. It did not provide for his signature. When Donna Campbell received it back it was dated April 26, 2005, three days after Bruce Reid had signed the other two documents, and it bears a signature in the name of Laura Reid. [ 75 ] Bruce Reid returned the two documents that he had signed and dated to his mother.

He noticed that the draft attachments were to be initialed by both of them, according to Donna Campbell’s letter, and so they proceeded to initial them. Bruce Reid left the documents with his mother. The next day, April 24, 2005, he gave his mother a legal size envelope that he had obtained. The next day, April 25, 2005, she gave the envelope back to him. It was sealed, stamped and addressed. He put it in the mail. [ 76 ] According to Bruce Reid, there was no discussion with his mother at the time of any of these events surrounding the receipt, signing and mailing of the legal documents.

Nothing was said as to the nature or purpose of these legal transactions. Indeed, nothing of any significance was said. Lynn Reid was living in the house at the time but he was not present for these events nor was he told about them. [ 77 ] Bruce Reid testified that at some point in this time period he witnessed a loud argument between his mother and Lynn Reid, in which Lynn Reid was aggressively demanding that he be given a place. His mother was hesitating, not wanting to make a commitment and not going along with Lynn Reid.

Bruce Reid intervened and took over the argument, defending his mother’s position and demanding to know what Lynn Reid had ever done for his own four children. [ 78 ] I cannot accept Bruce Reid’s account of this conversation. It is unsupported by any other evidence, it is not set out in any contemporaneous notes or records, and it is self-serving. Most importantly, it is contradicted by the large body of reliable evidence which establishes that Laura Reid intended to buy a home for Lynn Reid in Niagara Falls.

She had consistently expressed this intention to a number of witnesses and in her own written note and telephone message to Donna Campbell. It makes no sense that Lynn Reid would have to make angry demands of his mother on this topic and that she would be resisting him.

[ 79 ] After Donna Campbell received the three signed Acknowledgements with the three initialed attachments, she sent a memo to the para-legal conveyancing firm. It is dated May 2, 2005 and simply advises that the three Acknowledgements have been received and attaches a cheque “for three registrations”. Donna Campbell testified that the three initialed attachments of the Transfer, Survivorship Application and General Application were simply drafts. They clearly state “In preparation on April 5, 2005” on the top. She agreed that they are not an actual Transfer.

Once the May 2, 2005 memo is sent to the conveyancing firm, they prepare the final documents and then register them. [ 80 ] Donna Campbell learned at some point that Laura Reid had died on May 16, 2005 from a conversation with her mother, Marie Campbell. She had not yet received the final registered Transfer back from the para-legal conveyancing firm and it was now June 20, 2005. Donna Campbell testified that it had been intended to complete the transfer prior to Laura Reid’s death and that she was “very concerned”.

She wanted to insure that the registration had been properly concluded prior to Laura Reid’s death and so she instructed an assistant to make inquiries. She learned that the transfer had not been registered. She testified that she was “embarrassed” by this development as she had wanted to “complete and close” the transaction and forward the registered documents back to her client prior to her death. [ 81 ] Donna Campbell instructed her assistant to re-send the memo to the para-legal conveyancing firm and it was sent on June 20, 2005 with the handwritten instruction: “If this has not been registered.

Please do immediately and send”. She eventually received the three legal documents back from the conveyancing firm, including the Transfer. They are all receipted and registered on June 20, 2005, more than a month after Laura Reid’s death. [ 82 ] Donna Campbell testified that she had no concerns about registering a Transfer from a deceased person (Laura Reid) to a deceased person and her son (Laura Reid and Bruce Reid). She took the position that the transfer was made on April 23, 2005, when Laura Reid signed the Acknowledgement, and that registration is simply “notice to the world” of this transaction.

It would have been preferable to register it prior to death but it was not legally necessary as long as the transaction itself took place prior to death. By the time she had the Transfer registered on June 20, 2005 she knew there was a potential legal dispute with Lynn Reid. He had called her on June 10, 2005, as noted above, and he was clearly upset when she told him about her instructions to transfer the title. Furthermore, he advised her that he may retain a lawyer.

It never occurred to her that she should not register the Transfer in these circumstances. [ 83 ] Lynn Reid retained Tony Graci and he contacted Donna Campbell by telephone on June 23, 2005 and then by letters dated June 29, 2005 and July 5, 2005. Donna Campbell responded by letter dated July 6, 2005, asserting her position about the validity of the registration on June 20, 2005. She also stated the following about Laura Reid’s intentions: Mrs.

Reid’s instructions to transfer the property at 58 Redcar Avenue into joint names were part of an estate plan, the effect of which transfer was to eliminate the estate administration tax on this asset . [emphasis added] [ 84 ] After Laura Reid’s death, her two sons attended at Alan Mill’s office for the reading of the will. They had never seen it before and it was read to them for the first time. A discussion ensued about the assets in the estate. Bruce Reid had various documents relating to the stocks and bonds in the estate.

Bruce Reid asserted that the house was not part of the estate and advised Lynn Reid and Alan Mill, for the first time, about the prior transfer. Alan Mill agreed to probate the will and prepare a list of assets. [ 85 ] On June 22, 2005, Alan Mill wrote to Bruce Reid and Lynn Reid as the Executors of the estate of Laura Reid. He enclosed a list of assets and an abstract from a title search of the Redcar property. The abstract showed that title was still registered in the names of Thomas Reid and Laura Reid, in joint tenancy.

Alan Mill stated: Thomas Reid predeceased Laura Reid and she is now the sole owner of the property by right of survivorship. Because of this the property would be considered an asset of her estate and we will require an evaluation of same for probate purposes. [ 86 ] The list of “Assets on hand as of date of death”, enclosed with Alan Mill’s letter, clearly includes the Redcar house together with various bank accounts, stocks and bonds. [ 87 ] On June 24, 2005, Bruce Reid attended at Donna Campbell’s office alone and met with her.

He gave her Alan Mill’s letter and she gave him the now registered legal documents, including the Transfer that had been registered on June 20, 2005. The registration must have occurred after the date of the abstract that Alan Mill obtained when pursuing his probate duties in relation to Laura Reid’s

estate. Donna Campbell immediately sent Alan Mill an email, while still in her meeting with Bruce Reid. The email advised Alan Millthat the Acknowledgement relating to the Transfer from Laura Reid is dated April 23, 2005 and was effective at the time of her death onMay 16, 2005, even though it was not registered until June 20, 2005. In the result, she asserted: …the property at 58 Redcar does not form part of Mrs.

Reid’s estate. [88] A series of letters ensued, between Tony Graci and Donna Campbell, in which he threatened litigation over the Transfer and shethreatened to have Lynn Reid removed from the Redcar home as a trespasser. On July 28, 2005, Donna Campbell ceased to act forBruce Reid, as she had become a witness concerning the disputed transfer. Bruce Reid then instructed another lawyer to register aSurvivorship Application on the Redcar title, on March 7, 2006, at which point Bruce Reid became the sole registered owner of theproperty.

Tony Graci had previously registered a Caution against the title on behalf of Lynn Reid on August 24, 2005. On May 25,2006 Bruce Reid opened a line of credit account with the TD Bank and secured it with a collateral mortgage on the Redcar house. Hethen withdrew $35,000 from the account. The various applications, action and cross-application that are the subject of the present trialwere all commenced in and around May, 2006 and it is asserted that Bruce Reid’s counsel “was aware that litigation was about to becommenced when the mortgage loan was taken out”.

By Order dated July 13, 2006, Lissaman J. froze the estate assets and prohibitedany further dealings with the Redcar property, pending the litigation. In the face of this litigation, Alan Mill never did proceed withprobate. He is now deceased. [89] In concluding her evidence, Donna Campbell made a number of important concessions about her instructions from Laura Reid totransfer the title at Redcar into joint tenancy with her son Bruce Reid.

She conceded that her four communications with Laura Reid onthis subject were characterized by a number of changes and by uncertainty and hesitation as to the best timing for her to proceed. In spiteof this, Donna Campbell felt that she had clear instructions and there was no need to meet with her client and discuss the matter further. She conceded that it may not be good practice in some circumstances, to proceed with a real estate transaction when the signatures havenot been witnessed and the documents have not been signed in the lawyer’s presence. Indeed, this practice is now prohibited.

Sheconceded that Laura Reid did not seem to see any urgency in the matter as there were different parts to the estate plan that she was stillworking on. [90] Finally, Donna Campbell conceded that the fact that she had known Laura Reid for over fifty years, as a friend of her mother,may have influenced her decision not to raise certain difficult matters with her client such as whether the transfer was likely to cause evenmore conflict within the family. She knew that this was a touchy subject and that Laura Reid did not like discussing the family’s “dirtylaundry”.

She agreed that a lawyer’s duty can include giving tough blunt advice on difficult subjects like this. It was perhaps becauseshe knew Laura Reid that she felt a meeting and further discussion about the matter were unnecessary. [91] One final area of evidence relating to the Redcar transfer that must be noted is the suspicion of forgery. In his letter dated July 5,2005, Tony Graci asked Donna Campbell to produce “all of the relevant documents supporting the Transfer” and asked her to “adviseyour client not to deal with the property”.

In her letter dated July 6, 2005, Donna Campbell declined to give the latter advice to her clientbut she did produce the February 16, 2005 Valentine’s card note and the April 23, 2005 Acknowledgment and draft Transfer, allpurportedly signed by Laura Reid. Tony Graci wrote back by letter dated July 7, 2005, noting that the Acknowledgement was not“proper” as it “has not been witnessed”. He then stated the following: It appears that the signature of Mrs. Reid on her handwritten note does not match her signature on the Acknowledgment. This is clear onthe face of it.

Were there witnesses to both documents? [92] Donna Campbell’s letter, dated July 14, 2005, does not really respond to Tony Graci’s point other than to assert in a conclusoryway that witnesses are not required and that the documents “were properly executed”. Lynn Reid testified that the signatures on theAcknowledgements did not look like his mother’s and he certainly could not identify them as his mother’s. He also testified that it wasout of character for his mother to send instructions to a lawyer on the cut out back of a Valentine’s card.

She was prim and proper andconcerned about appearances and this note is much too informal. Donna Campbell agreed that Laura Reid was concerned aboutappearances. [93] I agree with Tony Graci’s observations. The signature on the February 16, 2005 Valentine’s card note and the signatures on thethree Acknowledgements do not appear to match.

Furthermore, the signatures on the three Acknowledgements have a studied, careful orpractised look to them whereas the handwriting on the note appears more natural and carefree. [94] The common law allows a trier of fact to compare known handwriting with unknown handwriting in order to determine whowrote the disputed handwriting. See: Regina v. Abdi (1997), (ON CA), 34 O.R. (3d) 499 (C.A.); Sopinka,

Lederman, Bryant and Fuerst, The Law of Evidence in Canada , 3 rd Ed., [Lexis Nexis Canada Inc. 2009] at pp. 782-4. However, I would not act on the basis of my own untrained judgment in this area, without the assistance of expert evidence. [ 95 ] The parties were sufficiently concerned about this matter that they both retained expert documents examiners. Reports were received from Diane Kruger, retained by Bruce Reid, and from Dan Purdy, retained by Lynn Reid. The experts both agree that the Valentine’s card note dated February 16, 2005 is genuine and was made by Laura Reid.

Both parties agree that I can receive and use the reports in order to accept the experts’ opinion on this point, without the necessity of hearing their testimony viva voce . However, the experts do not agree on the signatures found on the three Acknowledgements. Diane Kruger concludes that Laura Reid “probably” signed these documents. Dan Purdy concludes that Laura Reid “probably” did not sign these documents. Neither party was willing to call the conflicting experts as witnesses. They were concerned about costs and they thought that the two experts’ testimony would “cancel each other out”.

After some discussion, it was agreed that I should receive and mark the reports as exhibits but solely for the purpose of establishing the genuineness of the February 16, 2005 note on the back of the Valentine’s card. I will not use the reports in any fashion in relation to the signatures on the three Acknowledgements. iv. The evidence concerning the alleged false arrest and false imprisonment in August, 2005 [ 96 ] After Laura Reid’s death, the acrimony and conflict between the two brothers escalated. Their strong personal dislike for each other was now exacerbated by a legal conflict.

Lynn Reid had retained Tony Graci and Donna Campbell began to act for Bruce Reid, although she had initially acted for Laura Reid in relation to the transfer. [ 97 ] Tony Graci’s correspondence, as already noted, made it clear that there were serious legal disputes about the validity of the transfer and, even if valid, about its legal effect. He took the position that the house was part of the estate, that Lynn Reid was entitled to a 50% share of it and that his client was “prepared to litigate this matter”.

In these circumstances, he stated “My client will not move out”. [ 98 ] Donna Campbell’s correspondence, as noted, asserted that Lynn Reid’s claim was without merit. She also stated that: ... we have received instructions to proceed, as may be required, to remove him [Lynn Reid] from the premises on which he is trespassing. Please instruct your client to leave the premises immediately, together with his belongings and animals. [ 99 ] Donna Campbell’s last word on the matter, in her letter dated July 14, 2005, was to assert that “Your client continues to trespass on the property.

He has no status as a tenant of any description.” Tony Graci’s letter dated July 7, 2005 had clearly stated, “Our client will not leave the premises until this matter is either settled or there is a Court Order to that effect.” [ 100 ] The clients were copied on this correspondence. Both Bruce Reid and Donna Campbell testified that she advised him of his remedies in relation to trespass, directing him to a website. She also advised him of the relevant court and of the need to prepare a trespass notice and to attend before a Justice of the Peace.

Bruce Reid proceeded to prepare the notice and served it on his brother Lynn Reid, with a neighbour present as a witness. Lynn Reid agrees that he was served with the Notice Prohibiting Entry, dated July 10, 2005, which was produced and marked as an exhibit.

Lynn Reid responded to the Notice through his lawyer, Tony Graci, who wrote a letter dated July 12, 2005 advising that the Notice is “completely ridiculous”, that the dispute is “a civil matter” and that the lawyers should resolve it. [ 101 ] Both Lynn Reid and Bruce Reid agree that Bruce Reid had already called the police once, seeking to have Lynn Reid removed, but that the police had declined to do so. This was on June 30, 2005.

The police notes indicate that they took the position, as Tony Graci had put it, that it was a “civil matter”, that the parties were “fighting over estate” and that they were “advised to get lawyers”. Lynn Reid was receiving his mail at the Redcar home, including his welfare cheque.

It was the address on his driver’s license, his cats and his possessions were at the house and Tony Graci had advised him that he was entitled to reside at the home while the legal dispute with Bruce Reid over the transfer was dealt with by their respective lawyers. [ 102 ] Bruce Reid’s next step was to attend before a Justice of the Peace. The Notice Prohibiting Entry served on July 10, 2005 required Lynn Reid to vacate the premises by July 13, 2005. On July 14, 2005, Bruce Reid swore an Information at the Ontario Court of Justice at 2700 Eglinton Avenue West in

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