“The appeal must be allowed. In my view, the motion judge’s reasons do not adequately explain how she resolved the conflicts in the evidence, nor do they support the conclusion that she reached.
The motion judge was presented with two very different versions of what the parties had agreed to. Faced with this conflict in the evidence, the judge determined that the respondent’s version of events should be preferred over the version advanced by the appellants. There is little explanation as to why she rejected the appellants’ version other than her finding that, because of the respondent’s limited means, it made little sense for her to have invested all of her money in the Property.
There was, however, substantial affidavit evidence supporting the appellants’ version of events, including their evidence that their wills were amended to give effect to the respondent’s life interest and the fact that they paid all of the Property’s expenses from the outset. The motion judge’s reasons do not explain why this evidence was rejected nor does the motion judge make and explain credibility findings. Given the important issues which turn on credibility in this case, the failure to make such findings was an error. If credibility cannot be assessed on a written record, that should indicate that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Care must be taken “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.”