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INTERPRETATION - Extrinsic evidence and parol evidence rule - As to validity

Thursday, October 15, 2020 @ 7:42 AM  


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Appeal by the deceased’s daughter from the trial judgment finding that the first of two promissory notes providing that a loan made by the mother to the appellant was repayable on her death reflected the mother’s true intention. The second promissory note provided that the loan was to be forgiven on death. The purpose of the loan was to assist the appellant in her purchase of the interest of her former spouse in their cottage property. She thought the advance would be a gift. The appellant claimed that the first promissory note did not provide that the loan was forgiven upon the mother’s death because forgiveness of the note would be included in the mother’s will. It was on this basis that the appellant signed the first promissory note. The appellant testified that her mother then was afraid of her sister’s reaction if the forgiveness of the loan was in her will, and instead decided to include it in the promissory note. Accordingly, the appellant prepared the second promissory note and signed it. The trial judge relied on the testimony of two lawyers, which he found to be credible and reliable, to find that the mother never changed her mind about forgiving the loan, did not receive the second promissory note, and did not send an alleged email to the appellant confirming that the loan was to be forgiven upon death. The trial judge rejected the appellant’s account of the circumstances surrounding the signing of the promissory notes and the evidence that she relied on as confirmatory.

HELD: Appeal dismissed. The trial judge did not err in his treatment of the evidence of the witness to the signing of the promissory notes. Even if the trial judge had accepted the witness’ evidence, there was nothing the deceased said to her that indicated that the deceased intended to forgive the loan on her death or that the new note contained such a provision. Even if the trial judge had accepted the alleged email as a genuine message from the mother to the appellant, there could have been many explanations for it in the context of her illness. Sentiment expressed vaguely in an email could not displace the only direct evidence of the mother’s intention with respect to the loan and her estate, which was her delivery, just a couple of weeks earlier, of the first promissory note and her will to her lawyer. The trial judge specifically addressed the appellant’s suggestion that the mother simply forgot that she had received a second note which superseded the first one when she met with the lawyer and that she might have given him the wrong instructions. The trial judge was entitled to conclude that the mother had accurately conveyed her wishes to the lawyer when she brought the first promissory note and will to him and they met about her estate.

Lacasse v. Middleton, [2020] O.J. No. 3730, Ontario Court of Appeal, K.N. Feldman, K.M. van Rensburg and J.A. Thorburn JJ.A., September 4, 2020. Digest No. TLD-October122020006