DATE: 20000419 DOCKET: C27195 COURT OF APPEAL FOR ONTARIO OSBORNE A.C.J.O., CATZMAN and O'CONNOR JJ.A. BETWEEN: ) ) Andrew J. MacDonald MARJANA STEFANOVIC, EXECUTRIX ) for the appellant OF THE ESTATE OF KATRINA KATA ) KELJANOVIC ) ) Plaintiff/Appellant ) ) - and - ) Debra L. Stephens ) for the respondent MARIA SANSEVERINO ) ) Defendant/Respondent ) ) Heard: May 27 and 28, 1999 ) On appeal from the judgment of Kiteley J. dated April 9, 1997 OCONNOR J.A.: [1] Two days before she died, Katrina Keljanovic was persuaded to execute a transfer of land that changed the way in which she and her long-time partner, Maria Sanseverino, held title to the house in which they lived, from a tenancy in common to a joint tenancy. [2] As a result, instead of Keljanovics interest in the house passing under her will to her nephew in Yugoslavia, it went to Sanseverino, the surviving joint tenant. [3] Marjana Stefanovic, the executrix of Keljanovics estate, applied to have the transfer set aside, alleging that Keljanovic lacked the necessary capacity to validly execute it and that she had been unduly influenced by Sanseverino and others to do so. [4] After a four-day trial, Kiteley J. dismissed the claim. Stefanovic appeals, arguing that the trial judges findings that Keljanovic had capacity and that she acted free of undue influence are not supported by the evidence. [5] For the reasons below I would dismiss the appeal. Background [6] I will first set out an overview of the factual background leading up to the execution of the transfer. I will address the detailed evidence relating to the two issues, capacity and undue influence, in the course of my discussion of those issues. [7] Keljanovic and Sanseverino, then aged 42 and 28 years, met in 1968. Shortly afterwards, they began living together in an intimate relationship that continued until Keljanovics death on January 11, 1993. [8] In 1980 they purchased a house at 10 Winnipeg Road in Etobicoke, the subject of this litigation, and took title as joint tenants. Other than when Keljanovic was hospitalized from time to time during the 18 month period before her death, they lived together in this house and shared expenses. [9] In 1987, Keljanovic planned to visit two relatives in her native country, Yugoslavia. Sanseverino tried to persuade her not to go, her view being that the relatives took advantage of Keljanovic and were only interested in her money. Keljanovic became upset, a disagreement ensued and Keljanovic decided that the joint tenancy of 10 Winnipeg Road should be severed. She made arrangements with a lawyer and the two then executed a transfer of the property to themselves as tenants in common. At the time Keljanovic said, whats mine is mine, whats yours is yours. Although the transfer did not specify, it is accepted that each owned a one-half interest in the property. [10] Sanseverino testified that when Keljanovic returned from her trip, earlier than planned, Keljanovic said that she should not have gone, that she was fed up with her relatives and that she would transfer the title of 10 Winnipeg Road back to a joint tenancy. However, she never did until she executed the disputed transfer in January 1993. [11] In the spring of 1991, Keljanovic and Sanseverino tried to sell the property. The listing agents were the appellant Stefanovic and Kashmir Handy. The listing expired without a sale having taken place. Afterwards, both Stefanovic and Handy maintained a relationship with Keljanovic, visiting her from time to time, and both played an important role in the events that gave rise to this action. [12] In July 1991, Keljanovic was diagnosed with duodenal cancer, the illness that led to her death in January 1993. Around that time, on Keljanovics urging, Sanseverino gave up her job as a seamstress in order to actively care for Keljanovic. From then on Sanseverino did the housework, looked after Keljanovic as her condition gradually deteriorated and when she was in hospital, visited her on a daily basis bringing her food, cleaning her up and making her more comfortable. [13] In late 1991, Keljanovic transferred a bank account with a balance of about $62,000, previously in her name only, into an account at the Bank of Montreal to be held jointly with Sanseverino. [14] In July 1992, Sanseverino asked Keljanovic to transfer the property at 10 Winnipeg Road back to a joint tenancy. Although there are differences in the evidence as to why Sanseverino made this request and what exactly was said, it is clear that she asked Keljanovic to transfer the property and that Keljanovic refused to do so. [15] In September 1992, Keljanovic, without telling Sanseverino, closed the joint bank account at the Bank of Montreal and transferred the funds into an account in her own name. [16] In the late summer of 1992, Keljanovic raised the subject of a will with Stefanovic indicating that she wanted to leave everything including her one-half interest in 10 Winnipeg Road and the bank account that was now only in her name to her nephew, Milutin, who lived in Yugoslavia. She asked Stefanovic not to tell Sanseverino about her intention, explaining that Sanseverino wanted to get everything that Keljanovic owned and would be upset if she knew about the will. [17] When Stefanovic took Keljanovic to the hospital in November 1992, Keljanovic again raised the subject of a will. Stefanovic obtained a standard form, filled it out and had Keljanovic sign it. The will provided that Milutin would receive all of her assets. On Keljanovics request, Stefanovic called a lawyer to ensure that the execution was proper. A second will was prepared and executed; the substance was the same. This time, however, on Keljanovics request, Stefanovic was named as executrix. It is in this capacity that Stefanovic was the plaintiff, and is now the appellant in this action. After Keljanovics death this will was admitted to probate. Its validity is not in issue. [18] Keljanovic was discharged from hospital on December 23, 1992. She returned on December 29 and remained there until her death on January 11, 1993. At the time of her final admission to hospital Keljanovics cancer had metastasized. She had a high fever, uncontrolled diabetes and was deeply jaundiced. After admission she agreed to a treatment approach based on avoiding pain and suffering. She knew that her condition was not treatable and she gave a no CPR direction which meant that she did not want to be resuscitated if her heart or breathing stopped. The prognosis was very poor; there was little chance she would go home again. Sanseverino was aware of her condition and knew that she was near death. [19] On January 6, the doctor discontinued intravenous treatment; on January 8 he prescribed morphine for pain as necessary. By this point Keljanovic was very weak; she had been through a great deal and she wanted to die. On January 9 Keljanovic was using oxygen some of the time and received morphine at about 12:10 p.m., shortly after she signed the transfer. [20] During Keljanovics different stays in the hospital Sanseverino visited her on a daily basis. She was very solicitous and provided emotional and supportive care. In December 1992 Sanseverino discovered that Keljanovic had closed the joint bank account and early in January she found that some of Keljanovics jewellery, worth about $15,000, was missing from the house. When she asked Keljanovic about this on January 7, Keljanovic told her that she had given this jewellery to a niece, Mila, Milutins sister, who also resided in Yugoslavia. [21] Sanseverino testified that on January 7 she also raised the issue of transferring the title to the house back to a joint tenancy. According to Sanseverino, Keljanovic told her to go to a lawyer, Mr. Koplovic, to get the papers necessary to effect the change and to bring those papers to the hospital for her to sign. The appellant does not accept that Keljanovic asked to have the transfer prepared and argues that the trial judge made a finding of fact that she did not. I will come back to this issue later in these reasons. [22] In any event, whether on Keljanovics suggestion or on her own initiative, Sanseverino contacted Koplovic, who then prepared the transfer.1 When she picked it up the next day Koplovic advised her that a lawyer should be present when it was executed. Koplovic, whose firm was unable to act, suggested that Sanseverino call a real estate agent to recommend a lawyer. Sanseverino contacted Handy, one of the real estate agents involved in the 1991 listing, who suggested William Samis, a lawyer who was a friend of Handys husband. It was arranged that Samis, Handy and Sanseverino would meet at the hospital at about 11:30 a.m. on the following day, January 9, in order to have Keljanovic sign the transfer. [23] The three met as arranged and went together to Keljanovics hospital room. Keljanovic signed the transfer shortly before 12:10 p.m. The transfer was registered later in January. The evidence of what occurred in the hospital room between 11:30 a.m. and 12:10 p.m. on January 9, which I discuss in detail below, is pivotal to both issues, capacity and undue influence. Standard of Review [24] The appellant seeks to set aside the trial judges findings that Keljanovic had testamentary capacity and was not subject to undue influence when she signed the transfer. These are findings of fact entitled to deference from this court. [25] It is well accepted that an appellate court will only interfere with a finding of fact where a trial judge has made a clear or manifest error. The requirement that errors be clear or manifest imposes a deferential standard of reasonableness, not correctness. This means that an appellate court will not interfere simply because it disagrees with the finding of fact, but only if it concludes that the finding is unreasonable: Bryars Estate. v. The Toronto General Hospital (1997), 152 D.L.R. (4th) 243 at 252 (Ont. C.A.). [26] In general terms there are two kinds of errors in the fact finding process at trial that may warrant interference by an appellate court. [27] The first arises when a trial judge makes a finding of fact, whether on the basis of direct evidence or by inference, that is not reasonably supported by the evidence. In considering an appeal alleging an error of this kind, the appellate court considers all of the evidence relevant to the factual finding in issue and determines, not whether it agrees with the finding, but whether there is a reasonable basis for it. [28] When an appellate court concludes that a finding of fact is not reasonably supported by the evidence, it remains to be determined if the error warrants appellate interference. Clearly many errors do not. The powers of the Court of Appeal are set out in s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Once an error has been found the court has the power to make a fresh assessment of the evidence and if considered appropriate to substitute the decision that, in its view, should have been made in the court appealed from (s. 134(1)(a), see also Re Bryars Estate at p. 253). In other words, the appellate court must assess the soundness of the conclusions which were based on the trial judges erroneous findings of facts. In making a fresh assessment of the evidence, the appellate court may draw inferences of fact but no inference shall be drawn that is inconsistent with a finding of fact that has not been set aside (s. 134(4)). In appeals from judgments following trials, the power to substitute a decision on appeal is exercised with caution given that a fresh assessment of the evidence will necessarily be on a written record of the oral evidence given at trial. [29] The Court of Appeal also has the power to order a new trial, however, a new trial may only be ordered when the court is of the view that a substantial wrong or miscarriage of justice has occurred (s. 134(6)) which would include, but not be limited to, a finding that the result of the action in the court below cannot be sustained without the erroneous finding. [30] The second kind of error that may warrant appellate interference is what might be called a processing error, that is an error in processing the evidence that leads to a finding of fact. This type of error arises when a trial judge fails to appreciate the evidence relevant to a factual issue, either by disregarding or misapprehending that evidence. When the appellate court finds such an error it must first determine the effect of that error on the trial judges reasoning. It may interfere with the trial judges finding if it concludes that the part of the trial judges reasoning process that was tainted by the error was essential to the challenged finding of fact. In Schwartz v. Canada2, La Forest J. at p. 281 expressed this point as follows: In that sense, the appellate court must, in order to disturb the trial judges findings of fact, come to the conclusion that the evidence in question and the error made by the trial judge in disregarding [or misapprehending] it were overriding and determinative in the assessment of the balance of probabilities with respect to the factual issue [brackets my addition]. [31] In addition, when an appellate court determines that the trial judge has disregarded or misapprehended relevant evidence, the court may also be justified in interfering with the resulting finding of fact, regardless of the effect of the error on the trial judges reasoning, if the appellate court concludes that the finding is not reasonably supported by all of the evidence, including the disregarded or misapprehended evidence. [32] In both of the instances set out in the preceding two paragraphs, however, the test for appellate interference is as I have discussed in paragraph 28 above. [33] Finally, I turn to findings of credibility. These are not findings of fact but rather are part of the process of evaluating evidence that may lead to a finding of fact. The standard of review, the reasonableness of the finding of fact, is the same for findings of fact that are based wholly or in part on findings of credibility as those that are not. The standard of review for findings of credibility is also a standard of reasonableness. An appellate court may and should interfere with a finding of credibility that it considers unreasonable. [34] Although credibility based on findings of fact are reviewed by the same reasonableness standard as other findings of fact, the appellant faces a more difficult task when the finding of fact flows from a credibility assessment. Trial judges are in a much better position to assess credibility, particularly where it turns on the veracity of the witness. That assessment may be based quite properly on factors which cannot be reproduced in the trial record or reviewed on appeal. Consequently, appellate courts show a wise reluctance to interfere with credibility-based findings of fact. As a practical matter, a claim that a finding of fact is unreasonable will be particularly difficult to substantiate where the finding is based on a trial judges assessment of the credibility of a witness. [35] When an appellate court is satisfied that an error has been made in a finding of credibility it then considers the significance of that error on the resulting finding of fact and the significance of that finding in the overall context of the action. Again, the test for interference is as I have discussed in paragraph 28 above. Issue 1 - Capacity [36] Before considering the evidence on the issue of Keljanovics capacity, the trial judge set out the legal principles, correctly in my view, within which she analyzed the issue. The appellant does not argue that she erred in this regard. To provide context for my analysis of the evidence, I will briefly summarize those principles. [37] First, the trial judge determined that because the transfer only had a practical effect when one of the joint tenants died and the survivor acquired the deceaseds interest in the property, she should apply the principles applicable to testamentary dispositions for both issues, capacity and undue influence. [38] Next, she found that the circumstances surrounding the preparation and execution of the transfer raised suspicion concerning Keljanovics capacity. That being the case, she held that the onus was on the proponent of the transfer, Sanseverino, to dispel those suspicious circumstances and to prove testamentary capacity, as is the case with the proponent of a will: Re Davis, [1963] 2 O.R. 666 (C.A.); and MacGregor v. Martin Estate, [1965] S.C.R. 757. [39] Finally, she held that the requirement for testamentary capacity is a disposing mind and memory, that being one which is able to comprehend of its own initiative and volition, the central elements of will making . In this, she had regard to the cases of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; and Re Poirier Estate, [1944] S.C.R. 152. [40] The appellant argues that the trial judge made two errors in finding Keljanovic had testamentary capacity. · She misapprehended the evidence of two witnesses, Samis and Handy; and · Her finding of capacity was not reasonably supported by the evidence, viewed as a whole. Misapprehension of Evidence [41] The trial judge reviewed the evidence of Samis in detail. Samis was in Keljanovics hospital room for 5 to 10 minutes shortly after 11:30 a.m. on January 9. He had not met her before and did not know that she was dying. He had been told that Keljanovic had agreed to transfer title to a joint tenancy. His evidence is not clear as to whether he understood that he was to ascertain if Keljanovic had the necessary capacity to execute the transfer or not. To Samis, Keljanovic appeared elderly, weak, listless and quite sick. He attempted to explain to her the effect of the transfer to joint tenancy. She did not respond. It was his impression that she broadly understood what he said but was disinterested or preoccupied. He concluded that whatever state she was in, Keljanovic was not going to sign the transfer that day. He left the room without having conducted any examination to satisfy himself about her capacity. [42] The appellant argues that the trial judge erred because she did not refer, in her reasons, to a comment made by Samis that, I dont think her mental or physical state was such that it (signing the transfer) was appropriate. This comment by Samis was made shortly after he said, I think she understood what I said. At best, for the appellant, these comments read together are equivocal. [43] Taken in its entirety Samis evidence is of little assistance to the appellant or to the respondent. Although the trial judge summarized this evidence in some detail, she attached little or no weight to it, one way or the other, in concluding that Keljanovic had the required capacity to execute the transfer. I see no error in the way that the trial judge dealt with Samis evidence. [44] Next, the appellant argues that the trial judge misapprehended the evidence of Handy, which was central to the trial judges finding on this issue. Handy had known Keljanovic since the spring of 1991 and had visited her periodically, including on occasions when she was in hospital. Before going to Keljanovics hospital room with Samis and Sanseverino on January 9, Handy had been told by Sanseverino that Keljanovic had requested that the transfer be prepared and brought to the hospital for signing. Handy testified that after being in the room for a short period of time with Sanseverino and Samis she asked them to leave, deliberately taking it on herself to persuade Keljanovic to sign the transfer. Handy described her conversation with Keljanovic in some detail. On the basis of this evidence it is reasonable to conclude, as the trial judge did, that Keljanovic knew what her assets were, that she had made a will disposing of those assets, that Sanseverino was not named as a beneficiary of her estate, that Sanseverino did not know about the will, that Mira (the appellant Stefanovic) had the will, and that the transfer of 10 Winnipeg Road would have an impact on the effect of the will that would change what her nephew Milutin would otherwise receive. [45] Handy expressed the opinion that Keljanovic was all there and that she knew what was going on for sure. She said that although Keljanovic was sick she was not disoriented. Handy believed that Keljanovic understood the significance and effect of the transfer. The appellant argues that this evidence was qualified because on one occasion Handy said that she hoped that Keljanovic understood the nature of the transfer. The use of this phrase must be read in the context of all of Handys evidence; the clear message from that evidence was that Handy believed that Keljanovic understood what she was doing. [46] I see nothing in the trial judges reasons setting out the basis on which she found that Keljanovic had the required capacity to indicate that she misapprehended or unfairly considered the effect of Handys evidence. I would not interfere with her finding of capacity on this basis. Reasonableness of Finding Capacity [47] As I point out above, the trial judge properly determined that the onus to prove capacity was on the proponent of the transfer, Sanseverino. The trial judge concluded that it was established that Keljanovic had a disposing mind and memory and that although her mind was in some degree debilitated , she had the capacity to make a rational, fair and just disposition. [48] The appellant argues that the trial judge erred in reaching this conclusion in that she only considered Handys evidence and not the other evidence relevant to the issue. This is another way of saying that the trial judges finding is not reasonably supported by all of the evidence. [49] In addition to Handy and Samis, counsel referred the court to the evidence of four other witness on this issue: Sanseverino, Stefanovic, Dr. Lee and Dr. Wilson. [50] Not surprisingly, Sanseverinos evidence strongly supported her position that Keljanovic fully understood the nature of the transfer and that she made the decision to execute it of her own volition. The trial judge, however, had serious concerns about the credibility of this evidence and chose to disregard it, unless corroborated. As a result, in determining whether the trial judges finding is reasonably supported by the evidence, I do not attach any weight to Sanseverinos evidence. [51] Stefanovic testified that in November 1992, Keljanovic was alert and clearly understood what she was doing when she executed the will leaving all of her assets to her nephew Milutin. Her evidence, however, did not address the issue of capacity in the critical period leading up to the execution of the transfer on January 9. Again, this evidence does not weigh in the balance. [52] Dr. Lee, a specialist in gastroenterology, was Keljanovics admitting physician during the November 1992 admission to hospital and saw her almost daily. However, during her last admission to hospital he saw her just three times and spoke to her only about superficial things. He did not do a mental status examination. When asked, he was not able to say if she could fully understand legal documents on January 9. Dr. Lees evidence also adds little to the scales, one way or the other. [53] The strongest evidence supporting the position that Keljanovic lacked capacity was that of Dr. Wilson. He was a specialist in hematology and internal medicine and was the doctor responsible for Keljanovics care during her last admission to hospital, beginning on December 29, 1992. In addition to her seriously weakened condition, which I have described above, Dr. Wilson testified that she experienced hypoglycemia which could interfere with her thinking. Dr. Wilson did not believe that Keljanovic had the physical or mental capacity on January 9, to make an informed decision about the nature and consequences of signing a legal document. He said that it was his experience with patients in Keljanovics condition that one may think he or she is having a meaningful discussion, only to realize the next day that the patient did not take it all in. At this stage of an illness, he said there are gaps in comprehension. [54] Dr. Wilson attached a caveat to his opinion; he had not done a mental status examination. Further, like Dr. Lee, his conversations with Keljanovic had been superficial, largely relating to her symptoms. [55] Dr. Wilsons opinion is strong evidence deserving of serious consideration. However, I agree with the trial judge that Dr. Wilsons evidence is not determinative. He had not conducted a mental status examination and his conversations with Keljanovic were superficial. It is important to consider Dr. Wilsons evidence within the larger context of all of the evidence, in particular that of Handy. [56] The trial judge accepted Handys evidence. Implicitly she found Handy to be a credible witness. Her evidence was internally consistent, relatively straightforward and unshaken on cross-examination. There was nothing to suggest partiality or oblique motive. There is no basis to interfere with this finding of credibility. [57] Handys evidence dealt directly with the specific issue, that is Keljanovics capacity to understand the implications of the transfer. That evidence was detailed and to the point. Handy expressed the opinion that Keljanovic understood the effect of the transfer and gave her reasons for this opinion. It was open to the trial judge to accept this evidence in preference to that of Dr. Wilson. I do not agree with the appellant that in doing so she misapplied the courts decision in Re Price, [1946] O.W.N. 80, as that case stands for the proposition that a judgment as to testamentary capacity is a practical question which may be answered by a layman of good sense with as much authority as by a doctor. [58] The trial judge was alert to the suspicious circumstances that called Keljanovics capacity into question. After carefully considering all the evidence, the trial judge concluded that the proponent, Sanseverino, had established the required capacity. This was not an unreasonable finding. There was credible evidence, accepted by the trial judge, to support it. I therefore see no basis to interfere with this finding. Issue 2 - Undue Influence [59] This is the more difficult issue. The trial judge found that Keljanovics free will was not overborne by acts of coercion or fraud and that she was not subject to undue influence when she executed the transfer. [60] The appellant does not take issue with the legal principles relied upon by the trial judge in reaching this finding. The appellants submissions come down to a single point: the finding is not reasonably supported by the evidence, viewed as a whole. [61] In considering what constitutes undue influence the trial judge relied on a lengthy passage from Hall v. Hall (1868), L.R. 1 P. & D. 481 at 482, the nub of which described undue influence as pressure, of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment . And further on, Importunity or threats if carried to a degree in which the free play of the testators judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. [62] Except where there is a relationship of influence by a donee over a donor of a voluntary gift, the person alleging undue influence has the onus of proof. Suspicious circumstances surrounding the execution of a testamentary interest do not shift the onus to the proponent of the instrument to disprove undue influence: Vout v. Hay, [1995] 2 S.C.R. 876. [63] In cases of voluntary gifts the presumption of undue influence will arise if the relationship between the donor and donee was such as to raise a presumption that the donee had influence, the ability to dominate the will, over the donor. If the presumption arises, the burden shifts to the donee to rebut the presumption. This can be done by showing that there was no actual undue influence, that the donor received independent advice, and so on: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353. [64] The trial judge did not apply this presumption. She found that Keljanovic signed the transfer because of Handys persuasion, not because of Sanseverinos efforts. Indeed, Sanseverinos efforts were unsuccessful. She found that Handy received no benefit for her role and that she was not acting as Sanseverinos agent. She described Handy as a volunteer. These findings, which are supported by the evidence, establish that the circumstances in this case were not such as to trigger the application of the presumption of undue influence. Even if the presumption did apply, the trial judges finding that there was no actual undue influence, which I discuss below, would provide an evidentiary basis to rebut it. [65] The central facts on this issue are not in dispute. The question is whether the efforts that led Keljanovic to execute the transfer amounted to persuasion that appealed to her sense of fairness (i.e., doing the right thing for Sanseverino), or whether those efforts crossed the line and constituted coercion that overbore her judgment, wishes or volition. There was undoubtedly influence. The question is, was it undue. [66] Until immediately before she signed the transfer, Keljanovic was clearly of the mind to leave her one-half interest in 10 Winnipeg Road to her nephew Milutin and not to Sanseverino. In 1987 the title to the property, previously held by the two as joint tenants, was transferred to a tenancy in common. When Sanseverino tried to talk to Keljanovic about re-transferring this property to a joint tenancy in 1992, she was rebuffed. In 1992, Keljanovic transferred $62,000 held in the joint account to a new account opened in her own name. She did not advise Sanseverino of this transfer. In November 1992, Keljanovic prepared a will excluding Sanseverino, again keeping this information from her. [67] When Sanseverino, Handy and Samis went to Keljanovics hospital room on January 9, Samis attempted to explain the nature of the transfer to Keljanovic. While in the room with the others Sanseverino told Keljanovic how important it was that she sign, that she should think of what would happen to Sanseverino if she did not sign and that she, Keljanovic, had promised to sign the transfer. Sanseverino was very emotional, upset and crying. [68] Keljanovic did not respond to Samis or Sanseverino. She turned her head away. Samis said that Keljanovic was disinterested and preoccupied with other matters. He concluded that she would not be signing anything that day. It was then that Handy asked Sanseverino and Samis to leave the room, deliberately taking it on herself to persuade Keljanovic to sign the transfer. She was alone with Keljanovic until the transfer was signed except for periodic interruptions by Sanseverino, who came into the room, disrupted their conversation, berated Keljanovic and continued her pleas that Keljanovic sign the transfer. [69] When alone, Handy attempted to persuade Keljanovic to sign on the basis that it was the fair thing to do. She pointed out that the two had spent many years together, that Sanseverino had done a great deal for her including looking after her while she was sick, and that Sanseverino, who was then 55 years old, was without a job. She expressed concern as to what would happen to Sanseverino if Milutin, the nephew, decided to sell the house. There is no question that Handy did her best to persuade Keljanovic that the fair and proper thing to do was to execute the transfer. [70] Handy testified that after some time, Keljanovic closed her eyes. She was kind of thinking, she was quiet, shed some tears and then agreed to sign and let out a loud sigh. [71] Handy said that she did not believe she had forced Keljanovic to sign the transfer. Rather, Handy encouraged her, wanting her to realize that leaving her interest in the house to Milutin was not fair to Sanseverino. In the end, Handy was sure that Keljanovic realized this. The appellant attaches significance to a comment made by Handy that she hoped she did not force Keljanovic to sign the transfer. She used the same expression in describing her belief that Keljanovic understood what she was signing. This comment, viewed in the context of all of her evidence, appears to be a form of speech rather than an expression of doubt about her belief. Clearly, it was Handys view that she persuaded but did not force or coerce Keljanovic to sign. [72] The appellant argues that Handys efforts to persuade Keljanovic were flawed because she relied on inaccurate or incomplete information in attempting to convince Keljanovic to sign. In this regard the appellant raises three points. [73] First, it is argued that Handy misled Keljanovic by suggesting that if she did not execute the transfer, the government would take everything, meaning all of her property. This suggestion was, of course, incorrect. However, Keljanovic responded to it by saying that she had a will which Mira (Stefanovic, her executrix) had and which Sanseverino did not know about. This response, which addressed the concern about the government, dispels the notion that Keljanovic was misled into executing the transfer in order to avoid the property going to the government. It is also cogent evidence to show that Keljanovic did not simply agree with anything that Handy said and that she focused on and understood the conversation with Handy. [74] Next, the appellant argues that Handy had been misled by Sanseverino into believing that Keljanovic asked to have the transfer to joint tenancy prepared. Sanseverino testified that Keljanovic had made this request on January 7. [75] It is clear that Sanseverino told Handy that shortly before January 9 Keljanovic had asked Sanseverino to have the transfer to joint tenancy prepared by a lawyer and brought to the hospital. The lawyer who prepared the transfer, Koplovic, was not called as a witness by Sanseverino and the trial judge drew a negative inference against Sanseverino from this failure. [76] In the course of her conversation with Keljanovic, Handy mentioned that she, Keljanovic, had asked to have a lawyer prepare the transfer. Handy testified that Keljanovic sort of indicated that she did, but she didnt say yes or no. Later in her evidence Handy said that she believed Keljanovic knew what Samis had explained about the transfer because Keljanovic had mentioned that she was expecting Koplovic and that she knew she had asked Sanseverino to get Koplovic to prepare the transfer. She said that Keljanovic was aware of what was going on. [77] The trial judge did not make a specific finding about whether the earlier conversation in which Keljanovic allegedly asked Sanseverino to have the transfer prepared had occurred or not. The appellant argues that because the trial judge determined not to act on any evidence of Sanseverino, unless corroborated, this court should proceed on the basis that Keljanovic had not asked that the transfer be prepared. It seems to me that there is some corroboration in Handys evidence of her conversation with Keljanovic to support the evidence of Sanseverino. Even assuming, however, that Sanseverino misled Handy, it does not appear to have made a difference in Keljanovics decision to execute the transfer. Handys evidence was that she attempted to persuade her that it was the fair thing to do because of Sanseverinos past care and her future prospects. There is nothing in Handys evidence to suggest that the comment that Keljanovic had asked her to have the transfer prepared influenced her to sign. To the contrary, Handy testified that she was sure Keljanovic agreed to sign because she realized that maybe she was not being fair to Sanseverino. [78] Finally, the appellant argues that Handys efforts to persuade Keljanovic are questionable because she did not know all of the facts that should have properly weighed into a determination whether Keljanovic was being fair to Sanseverino. She did not know that Keljanovic was dying, nor did she know about Sanseverinos financial circumstances, in particular that Sanseverino had approximately $40,000 in a bank account. [79] The trial judge found that, had Handy known of the $40,000, she would still have considered the transfer to be the fair thing to do. The important point, however, is not what Handy believed but that in attempting to persuade Keljanovic she did not mislead Keljanovic about the specifics of Sanseverinos financial circumstances. She spoke in general terms about what was fair and about her concern for Sanseverinos future. [80] In my view, there is no basis to conclude that Handy misled Keljanovic in the course of her efforts to persuade her to sign the transfer. [81] The issue of undue influence turns largely on the conversation between Handy and Keljanovic when the two were alone in the hospital room. The trial judge found, correctly in my view, that the persuasion to sign came from Handy, not from Sanseverino. [82] An assessment of Handys efforts must be made against the background that Keljanovic had decided, some time previously, to leave the one-half interest under the will to her nephew and to keep this fact from Sanseverino. On January 9 she was weak and suffering from the final stages of her illness. She had resisted the emotional pleas of Sanseverino. It was only during the course of the conversation with Handy that she changed her mind. A sudden change of mind by a weakened person is cogent evidence of undue influence: Cartmill v. Pettman, [1994] O.J. No. 326 (QL) (Gen. Div.). [83] Weighed against this is the uncontradicted evidence that Keljanovic was strong willed, well educated and not subject to being pushed around. She was clearly the dominant personality in the relationship with Sanseverino. Furthermore, she had the capacity to understand the consequences of the transfer. This is important. Although undue influence raises a different issue than lack of capacity, [i]f it is established that the testator knew and appreciated what he was doing, in many cases there is little room for a finding that the testator was coerced: Vout v. Hay, supra at 890. [84] Handy testified that Keljanovic was not forced. She believed that Keljanovic realized that executing the transfer was the fair thing to do. This was not an unreasonable proposition. Looked at objectively, there is a good argument that it was the fair thing to do for the very reasons urged on Keljanovic by Handy. The two had cohabited for many years and they had shared much together. Sanseverino had cared for her under trying circumstances. Although the test is undue influence and not fairness, the fairness and reasonableness of the influence is surely relevant in determining whether or not it was undue. [85] The question comes down to whether the finding of the trial judge is one that is reasonably supported by the evidence. This is not an easy case. The trial judge was alive to the difficulty inherent in the facts of this case. She considered the factors summarized in Cartmill v. Pettman relevant to whether Keljanovic has been subjected to undue influence, including her debilitated physical condition and her sudden change of mind. The trial judge very carefully considered all of the evidence and concluded that Keljanovic was led but not driven to execute the transfer, that her free will was not overborne by acts of coercion or fraud. [86] In my view, this finding was open to the trial judge. There was evidence, found to be credible, that reasonably supported it. Accordingly, I would not interfere with the finding that Keljanovic was not subject to undue influence when she executed the transfer. DISPOSITION [87] In view of the above, it is not necessary to address the issue of donatio mortis causa. [88] I would dismiss the appeal with costs to the respondent to be paid from the estate. Released: CAO 19 Apr/00 Dennis OConnor J.A. I agree: M.A. Catzman J.A. OSBORNE A.C.J.O. (dissenting): [89] I have reviewed the draft reasons of OConnor J.A. I agree with my colleagues analysis on the issue of capacity. I cannot, however, agree with his conclusion on the issue of undue influence. For the reasons that follow, I think that Ms. Keljanovics signature on the transfer of the Winnipeg Road property was procured by actual undue influence. [90] The evidence was fully and fairly reviewed by the trial judge and has been referred to extensively and fairly in my colleagues reasons. I propose, therefore, to limit my review of the evidence to that part of it which is relevant to the issue whether Ms. Keljanovics signature was procured by undue influence. In doing so, I will refer to some of the evidence going to the issue of Ms. Keljanovics capacity on January 9, 1993, the day on which the transfer in question was signed. These references are necessary because Ms. Keljanovics diminished capacity, in my view, made her more susceptible to influence. [91] The Winnipeg Road property in which Ms. Keljanovic and Ms. Sanseverino lived was purchased in 1980. Title was taken in their names as joint tenants. In 1987, Ms. Keljanovic severed the joint tenancy. She told Ms. Sanseverino that whats mine is mine and whats yours is yours. [92] From 1987 to January 9, 1993, Ms. Keljanovic and Ms. Sanseverino held title to the Winnipeg Road home as tenants in common. Manifestly, from 1987 to January 9th, Ms. Keljanovic did not want her interest in the Winnipeg Road property to go to Ms. Sanseverino, as a surviving joint tenant, in the event of Ms. Keljanovics death. It was on January 9, 1993, two days before her death that Ms. Keljanovic executed a transfer of the title to the Winnipeg Road property to a joint tenancy. Thus, when Ms. Keljanovic died on January 11, 1993, Ms. Sanseverino became the owner of the property instead of the beneficiary to whom Ms. Keljanovic had left the property in her will. [93] In 1991, Ms. Keljanovic became ill and a medical examination established that she had cancer. In 1992, Ms. Sanseverino asked Ms. Keljanovic to transfer title to Winnipeg Road back into joint tenancy. Ms. Keljanovic refused to do so. [94] In September 1992, Ms. Keljanovic transferred the balance in a joint account (Ms. Keljanovic and Ms. Sanseverino were the joint owners of the account) to a new account in her own name. Ms. Sanseverino had no control over this account. Ms. Keljanovic asked her friend, Ms. Stefanovic, not to tell Ms. Sanseverino about this. [95] In 1992, Mr. Keljanovic told Ms. Stefanovic, her friend and the executrix of her will, that she wanted to have a will prepared. She gave Ms. Stefanovic a copy of the deed to the Winnipeg Road property and a bank statement for the account to which I have referred earlier. Ms. Stefanovic testified that Ms. Keljanovic asked her not to tell Ms. Sanseverino about the will because Ms. Keljanovic thought that Ms. Sanseverino wanted to inherit all of her property and would, therefore, be upset if she learned that she would not inherit all of Ms. Keljanovics estate. On November 16, 1992, Ms. Keljanovic signed her will. Her will provided that her interest in the Winnipeg Road property and her possessions go to her nephew Milutin. This will was probated on July 22, 1994. [96] By the fall of 1992, Ms. Keljanovics cancer had spread. She accepted that there was no medical treatment that could resolve her many medical problems. She went to the hospital emergency department on November 12, 1992 because of severe bleeding. She was discharged on November 13, 1992 but had to return to the hospital on November 14, 1992. She was discharged on December 23, 1992 but was re-admitted on December 29, 1992. She remained in the hospital from December 29th until her death on January 11, 1993. [97] Dr. Wilson, who was familiar with Ms. Keljanovics case and circumstances, testified extensively as to Ms. Keljanovics condition in November and December 1992 and in January 1993. He stated that Ms. Keljanovic had progressive inoperative wide- spread cancer that had originated in her upper bowel. He testified that Ms. Keljanovic appeared to be tired, fatigued and chronically ill. He described her appearance as yellow. At that time Ms. Keljanovic was a diabetic. This condition surfaced following her surgery in 1991 during which her pancreas was removed. [98] In addition to her problems directly related to her cancer, Ms. Keljanovic had a bacterial infection. Dr. Wilson referred to this infection as being particularly strong and the frequent cause of death in cancer patients. [99] Dr. Wilson prescribed a tranquilizer, Atavan, at the time of Ms. Keljanovics hospital admission on December 29th. He stated that Atavan can lead to forgetfulness in that it could affect the patients ability to think. He also said that patients in Ms. Keljanovics circumstances may appear to understand, without actually comprehending: it would be very likely that she would be confused given the fact that she had an infection, her blood sugar was high. in my experience unfortunately in patients at this stage of their illness is that you think you are having a meaningful discussion with them, and at times I spent quite lengthy discussions with many patients and the following day it is very clear to me that they have not taken anything in. So a patient who is sick and with other medical problems they can make eye contact, they make appropriate responses, but it is generally my if it was a meaningful discussion I would want to have it with another family member present because I think more times than not patients, they dont have any recollection. I am not sure what the mechanism is but its a common observation that you think you are having a meaningful discussion and its very clear that there are several gaps in understanding or just completely forget. [100] On December 30, 1992, Dr. Wilson prescribed a second antibiotic, Cipro to replace an earlier prescribed antibiotic which Dr. Wilson said was ineffective against the particular infection that Ms. Keljanovic had. Dr. Wilson said Cipro can have a number of drug interactions and could cause confusion and seizures. Ms. Keljanovic was also taking Gravol which Dr. Wilson said could cause sedation. [101] By January 8, 1993, Ms. Keljanovics condition was deteriorating rapidly. Since she was incontinent, Dr. Wilson asked the nursing staff to insert a full catheter so that he could avoid the risk of Ms. Keljanovic suffering from bed sores. He wanted to limit active treatment at that time because it was obvious that only palliative care made sense. Thus, on January 8th he reduced the antibiotics that Ms. Keljanovic was receiving and, to alleviate her suffering, he prescribed morphine on an as- needed basis. Dr. Wilson testified: I did not order morphine on a regular basis and the reason for that is that I felt clinically that her condition was clearly failing; I put a notation on her chart that in spite of our best efforts, we were not able to improve her, and what I was looking for, maybe I should, I was looking for her to improve what we call a performance test Her ability to manage if I could by treating her infection or treating her bleeding, [102] Dr. Wilson described morphine as a powerful narcotic analgesic. He said that for someone who is not used to taking it morphine can put them to sleep. He added that morphine certainly interferes with their ability to communicate well and to understand. [103] Dr. Wilson saw Ms. Keljanovic on the morning of January 9, 1993. He found her to be weak and deeply jaundiced. He recognized that the final days of her illness were approaching. At that point he added a third drug Haldol which he prescribed on an as-need-basis. Haldol is a major tranquilizer which Dr. Wilson prescribed because in his experience patients in the latter stages of a terminal illness can become paranoid and quite agitated. He also renewed the morphine prescription during the morning of January 9th. [104] When Dr. Wilson was asked about Ms. Keljanovics ability to comprehend on January 9, 1993, he said, In my opinion it would certainly be questionable. The reference with respect to comprehension was to the significance of legal documents. When specifically asked about Ms. Keljanovics capacity to make an informed decision as to the nature and consequences of signing a legal document, on January 9, 1993, Dr. Wilson said, I do not believe she would. [105] Dr. Lee, a gastroentorologist, also saw Ms. Keljanovic frequently when she was in the hospital. He described her as strong-willed and stoic. He said that she was surprisingly coherent on January 9th. However, he added that patients in Ms. Keljanovics circumstances can appear to understand, but not understand, what is going on around them. In the end, he professed to be unable to say whether or not Ms. Keljanovic could understand legal documents on January 9th, when the transfer in question was signed. Capacity [106] When she dealt with the capacity issue, the trial judge accepted the evidence of Kashmir Handy, a former real estate agent who was in Ms. Keljanovics room on January 9, 1993 when she signed the transfer. Ms. Handy testified that Ms. Keljanovic did understand what she was doing and that she was thus capable of signing the transfer on January 9th. The trial judge viewed the evidence of Drs. Wilson and Lee which cast some doubt on Ms. Keljanovics capacity as not being determinative. [107] I accept, as my colleague OConnor J.A. did, that it was open to the trial judge to accept Ms. Handys evidence on the capacity issue. However, in my view, it would have been better had the trial judge filtered Ms. Handys opinion evidence as to Ms. Keljanovics capacity through the evidence of Drs. Wilson and Lee. Both testified that Ms. Keljanovic might have appeared to understand, in circumstances where she did not in fact understand. Thus, the issue of the reliability of Ms. Handys evidence, as opposed to its credibility, should, in my opinion, have been considered in light of the uncontradicted medical evidence. Nonetheless, since the trial judge fully reviewed the evidence of Drs. Wilson and Lee it cannot be said that she misapprehended their evidence, or that she failed to take account of their evidence. Thus, I am not prepared to disagree with OConnor J.A.s conclusion that there is no basis upon which to interfere with the trial judges finding on the capacity issue. However, as I have said, I do not agree with my colleagues views on the undue influence issue. Undue Influence [108] On January 8, 1993, a solicitor, Mr. Kolopovic, prepared a transfer of the Winnipeg Road property from Ms. Keljanovic and Ms. Sanseverino as tenants-in-common to Ms. Keljanovic and Ms. Sanseverino as joint tenants. Obviously, from Ms. Sanseverinos standpoint, the idea was that she would acquire title to the Winnipeg Road property, as a surviving joint tenant, in the event of Ms. Keljanovics then expected death, provided, of course, that the transfer in question was duly signed. Getting Ms. Keljanovic to sign the transfer was, therefore, a matter of some urgency. [109] The evidence is not clear as to precisely who asked Mr. Kolopovic to prepare the transfer. It is, however, apparent that Mr. Kolopovic regarded Ms. Sanseverino as his principal client since he subsequently submitted a bill for $200 to her for his work. Part of the obscurity on this aspect of the case results from the fact that Mr. Kolopovic did not give evidence. The trial judge drew an inference adverse to Ms. Sanseverino as a consequence of her failure to call Mr. Kolopovic. I take it that the inference was that Mr. Kolopivics evidence would not have been of assistance to Ms. Sanseverinos case. [110] Mr. Kolopovic told Ms. Sanseverino that he could not go to the hospital to participate in securing Ms. Keljanovics signature on the transfer of the Winnipeg Road property to a joint tenancy. He advised Ms. Sanseverino to contact her friend, Kashmir Handy, a real estate agent, to find another lawyer to go to the hospital as a witness. [111] Ms. Handy, at the suggestion of her husband, contacted a lawyer, William Samis. He agreed to go to the hospital with Ms. Handy and Ms. Sanseverino on Saturday, January 9, 1993. Ms. Sanseverino, Ms. Handy, Mr. Samis and Ms. Stefanovic met in the lobby of the hospital at about 11:30 a.m. on January 9th. They then went to Ms. Keljanovics hospital room. [112] Mr. Samis thought that the transfer from tenancy-in- common to joint tenancy was being effected with Ms. Keljanovics consent. Thus, he appears to have thought that all that he was required to do was to ensure that Ms. Keljanovic understood what the transfer was all about. He testified that did not think that he was there to provide independent legal advice or to confirm Ms. Keljanovics capacity. He did not know that Ms. Keljanovic had cancer, that she was dying or that she had a will in which she left her interest in the Winnipeg Road property to her nephew Milutin. Nor did he know, or ask, what medication Ms. Keljanovic was taking. Mr. Samis billed Ms. Sanseverino $350.00 for his time in going to the hospital and for some legal research, because, as the trial judge put it, he thought Ms. Sanseverino was predominantly his client. [113] Mr. Samis described Ms. Keljanovic as being an elderly, weak, listless woman when he saw her for the first time on January 9th. He testified that Ms. Keljanovic turned away and did not respond when he explained the effect of the transfer to her. At this point, according to Mr. Samis, Ms. Keljanovic appeared to be disinterested and preoccupied with other matters. [114] When Ms. Keljanovic did not respond to his attempted explanation or the transfer, Mr. Samis took it that she did not want to sign. He, therefore, decided to withdraw. He said: Ms. Keljanovic was not responding generally to what I was saying and there didnt seem to be a point in belabouring it beyond a certain level. (p. 328) My recollection is that while I was explaining the purport of it [the transfer], it became clear that she was and I dont know how to put it she was either disinterested and/or preoccupied with other matters; she didnt seem to show any particular interest in what I was saying I think she understood what I was saying but I didnt get any particular direct response from her one way or the other with respect to it. I decided there was no purpose being served by me being there because she was not likely to be signing it in my presence and if she did I dont think at that point I dont think that her mental and physical state was such that it was appropriate. (p. 335) [115] Mr. Samis testified that while he was in Ms. Keljanovics hospital room both Ms. Sanseverino and Ms. Handy attempted to persuade to Ms. Keljanovic to sign the transfer. They emphasized that she had promised to do so. He added that either Ms. Sanseverino or Ms. Handy asked Ms. Keljanovic to take account of what would happen to Ms. Sanseverino in the event of Ms. Keljanovics death if Ms. Keljanovic did not sign the transfer. Mr. Samis referred to their attempts to obtain Ms. Keljanovics signature on the transfer as attempts to convince, not acts of coercion. [116] Before Mr. Samis left Ms. Keljanovics hospital room he told Ms. Handy and Ms. Sanseverino that if Ms. Keljanovic changed her mind about signing the transfer there was no need for a lawyer to be present as a witness, provided that someone could attest to her capacity. [117] Ms. Handy, whose evidence the trial judge accepted, generally confirmed Mr. Samis evidence about events in the hospital room while Mr. Samis was there. [118] After Mr. Samis left, Ms. Handy and Ms. Sanseverino were alone with Ms. Keljanovic. The trial judge found that Ms. Sanseverino, virtually berated Ms. Keljanovic to sign the transfer at that time. Her efforts were unsuccessful, so Ms. Handy appears to have decided that she would take over. She recognized that Ms. Sanseverinos emotional protestations were upsetting Ms. Keljanovic. Thus, at Ms. Handys suggestion, Ms. Sanseverino left the room and Ms. Handy attempted to persuade Ms. Keljanovic to sign the transfer. [119] Ms. Handy emphasized the long term relationship that Ms. Keljanovic had with Ms. Sanseverino. She pointed out that if the Winnipeg Road property were sold after Ms. Keljanovics death Ms. Sanseverino would have no where to live. She reminded Ms. Keljanovic that Ms. Sanseverino was 55, had no job and that she had looked after Ms. Keljanovic over the years. She also told Ms. Keljanovic that if she died without a will the government would take everything and Ms. Sanseverino would get nothing. In response to that observation, which was clearly wrong, Ms. Keljanovic stated that she had a will and as a result the government would not be involved in her estate. [120] Ms. Handy asked Ms. Keljanovic if Ms. Sanseverino had done something to offend her. Ms. Keljanovic responded that she had not. Ms. Handy also asked Ms. Keljanovic if she had left her interest in the property to Ms. Sanseverino in her will. Ms. Keljanovic replied by saying that she had to leave something to her nephew Milutin. When Ms. Handy then suggested that Ms. Keljanovic leave the Winnipeg Road property to Ms. Sanseverino and everything else to Milutin, Ms. Keljanovic became upset and teary. She then said that she would sign the transfer. At that point Ms. Handy reassured her that she was doing the right thing. [121] When she dealt with the issue of undue influence, the trial judge stated: if Kata [Ms. Keljanovic] had signed the transfer without the intervention of Kash [Ms. Handy] the outcome would be different. I take it that the trial judge meant that if Ms. Sanseverinos actions, as opposed to those of Ms. Handy, had caused Ms. Keljanovic to sign the transfer, the outcome of the action would be different, that is Ms. Keljanovics execution of the transfer would have been compromised by Ms. Sanseverinos undue influence. The trial judge emphasized that Ms. Handy was not Ms. Sanseverinos agent. She said: I am not prepared to find that Kash was Marias agent and was simply doing what Maria had been unsuccessful in achieving. I do not attribute the efforts to persuade made by Kash, which efforts were successful, to Maria. [122] It was on the basis of this agency finding and the trial judges conclusion that it was Ms. Handy, not Ms. Sanseverino, who finally persuaded Ms. Keljanovic to sign that the trial judge concluded that undue influence was not established. Analysis [123] The ability of one person to dominate the will of another is central to the concept of undue influence. Wilson J. put it in this way in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at p. ___: (p. 14 of the QL printout) It seems to me rather that when one speaks of influence one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. To dominate the will of another seems to exercise a persuasive influence over him or her. [124] What will constitute undue influence will vary depending upon the circumstances of the case, including the relationship between the parties and the transaction in question. See Hall v. Hall (11868), L.R. 1 P&D 485. As Wilson J. observed in Geffen v. Goodman Estate, supra, the doctrine of undue influence was developed not to save people from the consequences of their own folly but to save them from being victimized by other people. See Allcard v. Skinner, [1886-90] All E.R. 90. [125] When Ms. Keljanovic signed the transfer she was weakened by cancer and in a generally debilitated condition. She was tranquilized, and receiving morphine for her pain. She was hypoglycaemic. [126] From 1987 forward Ms. Keljanovic had structured her affairs so that her assets would be separate from Ms. Sanseverinos. The trial judge recognized this; she aptly referred to Ms. Keljanovic and Ms. Sanseverino operating on a yours and mine principle. [127] Ms. Keljanovic had to be persuaded to sign the transfer in the sense that she did not decide on her own that she was going to sign it. Indeed, minutes before she agreed to sign the transfer, she had indicated to Mr. Samis that she did not want to sign it. Consistent with the trial judges finding on the capacity issue, I have to assume that Ms. Keljanovic knew what she was doing when she turned away from Mr. Samis and thus made it clear at least to him that this was anything but the consent transaction that Mr. Samis thought it was before he entered Ms. Keljanovics hospital room on January 9th. Ms. Keljanovics refusal to sign the transfer was consistent with her intentions as reflected by her actions starting in 1987 when she changed title to the Winnipeg Road property to a tenancy in common and later her closing what was once a joint bank account. Her refusal to sign was also consistent with her 1992 will in which she specifically left her interest in the Winnipeg Road property to her nephew Milutin. [128] In my opinion, the trial judge made three important and somewhat related findings. First, she concluded that, although Ms. Sanseverino virtually berated Ms. Keljanovic to sign the transfer, it was Ms. Handy who finally persuaded Ms. Keljanovic to change her mind and sign. This was the product of a but for causation analysis from which the trial judge concluded that Ms. Handys persuasive powers, not Ms. Sanseverinos emotional outbursts, caused Ms. Keljanovic to sign the transfer. Second, as I have said, the trial judge found that Kash [Ms. Handy] was a volunteer, that is she was not Ms. Sanseverinos agent. Third, the trial judge concluded that without Ms. Handys intervention the outcome would be different. [129] I think that the trial judges analysis was flawed in two respects. First, she failed to consider the cumulative effect of the attempts to influence Ms. Keljanovic by both Ms. Sanseverino and Ms. Handy. Put simply, her causation analysis was too narrow. Second, in my opinion, the trial judges finding that Ms. Handy was a volunteer, that is not Ms. Sanseverinos agent, is not supported by the evidence and is thus unreasonable. I will deal with the agency issue first. [130] Ms. Handy, who did not know Ms. Keljanovic well, arranged for Mr. Samis to come to the hospital on January 9th. She assisted Ms. Sanseverino in picking up the transfer from Mr. Koplovics office. The sole purpose of Ms. Handys attendance at the hospital was to help Ms. Sanseverino get Ms. Keljanovic to sign the transfer. On January 9th, Ms. Handy and Ms. Sanseverino had a common purpose which was to secure Ms. Keljanovics signature on the transfer of the title to the Winnipeg Road property to joint tenancy. They were not independent actors. Ms. Handy asked Ms. Sanseverino to leave the hospital room because she thought that without Ms. Sanseverinos emotional outbursts, Ms. Keljanovic could more easily be persuaded to sign. In light of the evidence concerning the relationship between Ms. Handy and Ms. Sanseverino, and the singular reason for the attendance of both woman at the hospital on January 9th, I do not think that the trial judges finding that Ms. Handy was not Ms. Sanseverinos agent can be sustained. It is a finding that is not supported by the evidence. [131] I accept that Ms. Handy was trying to advance Ms. Sanseverinos interests out of a sense of fairness. It may well have been fair that Ms. Sanseverino. who cared for Ms. Keljanovic during her terminal illness, take title to the Winnipeg Road property as a surviving joint tenant. It is, however, to be noted that it is also fair that a person in Ms. Keljanovics vulnerable position be left to dispose of her assets as she sees fit. [132] In any case, it seems to me to be at odds with the purpose to be served by the doctrine of undue influence to ignore Ms. Sanseverinos efforts to persuade Ms. Keljanovic to sign, even if Ms. Handy was a volunteer, as found by the trial judge. The doctrine of undue influence is designed to protect the vulnerable from external influence which is undue. Thus, the critical issue was whether Ms. Keljanovic, a vulnerable dying woman, signed the transfer of her own free will. The issue is not which of Ms. Handy or Ms. Sanseverino caused her to sign, but rather whether, in all of the circumstances, the combined effect of the influence brought to bear by Ms. Handy and Ms. Sanseverino (and for that matter Mr. Samis) was undue. The trial judges causation and agency analysis effectively, and in my view wrongly, wrote Ms. Sanseverino (who the trial judge found virtually berated Ms. Keljanovic) out of the script. [133] When all of the influence imposed on Ms. Keljanovic is considered, it seems to me to be clear that Ms. Sanseverino and Ms. Handy together virtually besieged Ms. Keljanovic to change her mind and sign the transfer. When the trial judge observed in dealing with the causation issue that if Ms. Handy had not caused Ms. Keljanovic to sign the outcome would be different, I think that the trial judge must have accepted that Ms. Sanseverinos attempts to influence Ms. Keljanovic were undue. It would follow that if the persuasive efforts of both Ms. Handy and Ms. Sanseverino are taken into account the influence exercised by them was undue. [134] For these reasons, I would allow the appeal. If required, I may be spoken to about the disposition of costs. C.A. Osborne A.C.J.O. _______________________________ 1 The full description of this instrument is Transfer/Deed of Land. It is Form 1 Land Registration Act, 1984. Throughout these reasons I will refer to it as a transfer. 2 [1996] 1 S.C.R. 254. |