IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Ganguin v. Linsenmeier, |
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2012 BCSC 808 |
Date: 20120531
Docket: S131526
Registry: New Westminster
Between:
Maria Louise Ganguin
Plaintiff
And
Maria Theresa Linsenmeier and Daniel Fehr and
British Columbia Lottery Corporation
Defendants
And
Maria Theresa Linsenmeier and Daniel Fehr
Third Parties
Corrected Judgment: This text of this judgment was corrected on the front page
on June 1, 2012
Before: The Honourable Mr. Justice Armstrong
Reasons for Judgment
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Counsel for Plaintiff: |
S. Herman |
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Counsel for Defendants Maria Theresa Linsenmeier and Daniel Fehr: |
A.R. Sodagar E. Wong |
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Place and Date of Trial: |
New Westminster, B.C. February 9 and 10, 2012 |
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Place and Date of Judgment: |
New Westminster, B.C. May 31, 2012 |
[1] In November 2008, Maria Theresa Linsenmeier (now Fehr) and Daniel Fehr won $12,678,929 after purchasing a 6/49 lottery ticket. This dispute concerns the source of the money paid to purchase that ticket and whether the plaintiff, Maria Louise Ganguin, is entitled to one half of the money.
[2] At the time their ticket was drawn, Ms. Ganguin and Ms. Fehr were in a catering business delivering sandwiches and beverages to work sites in Surrey. Ms. Ganguin and Ms. Fehr drove separate catering trucks and in the course of their business agreed that, from time to time, each was authorized to purchase lottery tickets from money they carried in their delivery trucks. This money belonged to their business and was kept in a box used to hold their daily cash floats and sales revenue from which they paid many expenses (the “box”). Each delivery truck had such a box. They frequently purchased lottery tickets using cash from their box and had agreed to divide equally any lottery prizes won.
[3] On November 26, 2008, Ms. Fehr purchased the winning lottery ticket and says she used a $20 bill given to her by Mr. Fehr earlier that morning to buy the ticket. Ms. Ganguin argues that the money used to buy this ticket came from the box and, as a result, she is entitled to a one half interest in the prize. Ms. Fehr stands on her evidence that the money used to buy the ticket was given to her by Mr. Fehr and they alone are entitled to the prize money.
[4] There is general agreement between the parties that if the funds to purchase the ticket came from Mr. Fehr and not the box, then Ms. Ganguin has no claim to the prize.
[5] Is the plaintiff’s claim suitable to be decided on a summary trial application?
[6] The Fehrs lived in a common-law relationship from December 1999 until they married in December 2010.
[7] Ms. Ganguin is 41 years of age and has a high school education in addition to experience in retail, banking, cleaning, and catering. Ms. Ganguin had been operating a coffee truck business in the Lower Mainland when she and Ms. Fehr became friends in the spring of 2005. Around September 2005, they had agreed to jointly operate the coffee truck business and began selling coffee and food from two trucks owned by the business.
[8] Sometime after September 2005, Ms. Ganguin offered to share her residence with Ms. Fehr, who subsequently moved into Ms. Ganguin’s home. Daniel Fehr and his son Jason also moved into Ms. Ganguin’s home in January 2006. The Fehrs moved out of Ms. Ganguin’s home in June 2006.
[9] The parties’ coffee truck business was comprised of two trucks that the women daily drove to work sites to sell food and beverages. The cash collected by the parties from sales during the week was placed in the cash box kept in the back of their trucks; they paid expenses for supplies and gas from the cash and, from time to time, purchased lottery tickets as part of their joint coffee truck business. They met at the end of each week and accounted for money collected.
[10] This business was not prosperous. Ms. Fehr was making approximately $100 per week; Ms. Ganguin did not know what income she earned from 2006 to 2008.
[11] The parties began the practice of buying lottery tickets with joint business funds in the summer of 2005. From October 2005 to June 2006, the parties frequently purchased business lottery tickets twice a week.
[12] The parties maintained records of cash receipts and expenses and created a specific entry on their cash summary forms to record the purchase of business lottery tickets. The records for November 28, 2008 from Ms. Fehr’s truck were apparently in her possession for a time after the winning draw but had been destroyed before this action was commenced.
[13] Ms. Fehr said that the parties’ understanding was that if the business was doing well enough, she would buy a lottery ticket at the same time she purchased gas. The money would normally be taken from the box and the purchase was recorded on the records kept with the truck. On November 28, 2008, she followed her usual pattern. She drove her truck to a Shell station on King George Highway in Surrey where she purchased gasoline. She gave a detailed account of stopping at that station and purchasing gasoline using cash from the box. She produced a receipt dated November 28, 2008 at 6:40:05 a.m. confirming that her only purchase was gasoline.
[14] Ms. Fehr said that on November 28, 2008, the business was not doing well and she did not buy a lottery ticket at the gas station for the business.
[15] She said that later that morning she stopped her truck at a construction site where Mr. Fehr and his son Jason were installing siding. She spoke with Mr. Fehr about purchasing a lottery ticket; she did not have the money to pay for a ticket of her own. Mr. Fehr and his son Jason deposed that Mr. Fehr gave Ms. Fehr a $20 bill to buy a lottery ticket.
[16] During her lunch break later that morning, Ms. Fehr stopped at the Cloverhill Market where she often went at her lunch time. On this day, Ms. Fehr deposed that she purchased an $11 Lotto 6/49 ticket and a separate $5 scratch-and-win ticket using the $20 bill received from Mr. Fehr.
[17] The winning draw occurred on Saturday, November 29, 2008. Ms. Fehr did not check the ticket until the morning of December 1, 2008.
[18] Ms. Fehr said that she might put her own name on a ticket if she was buying it personally as opposed to for the business. There was no marking on the winning ticket when the prize was claimed.
[19] On November 30, 2008, Ms. Ganguin and Ms. Fehr met with Ms. Ganguin’s then boyfriend, Ranier, to discuss an altercation between Ms. Fehr and Mr. Ranier. I presume this meeting also included a review of the revenue for the week. There is a dispute on the facts about what was said at the November 30 meeting. Ms. Fehr reports a conversation in which Ms. Ganguin talked about the lottery and lamented that they could not afford to buy a ticket from the company funds. Ms. Ganguin denies this conversation and said that in fact she had purchased a ticket with business money for herself and Ms. Fehr. She was not able to find or produce a copy of that ticket and at her discovery expressed some doubt as to whether she purchased a ticket.
[20] Ms. Fehr said that she told Ms. Ganguin at the November 30 meeting that she had purchased a ticket for herself. Ms. Ganguin did not recall this remark but said that it was possible Ms. Fehr commented about her purchase.
[21] Ms. Fehr returned to the Cloverhill Market on December 1, 2008 and checked her lottery ticket at 10:12:49 a.m. Ms. Fehr quickly called Mr. Fehr and Ms. Ganguin to announce that she had won the lottery. There is some controversy about what Ms. Fehr said to Ms. Ganguin. Ms. Ganguin alleges that she was told “Daniel’s ticket won the lottery” or “Daniel won the lottery”. Ms. Fehr says she told Ms. Ganguin “Daniel and I won the lottery”.
[22] This discrepancy between their versions of what was said may be significant. If Ms. Ganguin's version is correct, there may be an element of deception in identifying Daniel as the winner of the lottery rather than Ms. Fehr and Daniel. This is the type of credibility issue that a trial judge would be better equipped to resolve after hearing cross-examination of both parties.
[23] The Fehrs were required to attend at the B.C. Lottery Corporation (“BCLC”) office in order to claim their prize. They were interviewed twice and provided answers that were recorded by the interviewers. During those interviews, the subject of Ms. Fehr’s practice of purchasing lottery tickets with Ms. Ganguin using business money was discussed.
[24] In this interview, Ms. Fehr told the BCLC personnel that she did not buy “a ticket for the truck” because sales were not great. It does not appear that, at the time, Ms. Ganguin knew that Ms. Fehr had said that the business was not doing well when she purchased the ticket.
[25] At this time Ms. Ganguin was asked by BCLC to, and did, sign a fee waiver indicating she accepted that the winning ticket was not a business lottery ticket.
[26] Ms. Ganguin became suspicious of Ms. Fehr when she read in a December 2, 2008 newspaper article that Ms. Fehr had purchased the ticket while on her coffee truck route and that she was noted to be the first name on the cheque issued by the BCLC. Ms. Ganguin did not believe she had an interest in the ticket in spite of urgings by family and friends to consult a lawyer. However, in November 2010 Ms. Ganguin took legal advice and started this action.
[27] There is no independent evidence of the fact that the money came from the box or that the money used to buy the winning ticket was the $20 bill provided by Mr. Fehr, other than Ms. Fehr’s affidavit evidence that she used his $20 bill for that purpose.
[28] It is obvious to me that Ms. Ganguin's action would fail without some other evidence from which it could be inferred that business funds were used to purchase this ticket.
[29] Ms. Ganguin argued the following issues:
· the credibility of Ms. Fehr must be tested at trial before the Court can accept Ms. Fehr’s evidence, and since this is a genuine issue for trial, the matter cannot be resolved by way of a summary process;
· the onus, in the context of a lottery ticket purchase where the issue is the source of the money to buy the ticket, rests with Ms. Fehr because she is the only person who knows the source of the money for the ticket;
· there should be a presumption that the ticket was purchased with business money;
· an adverse inference should be drawn because Ms. Fehr lost or destroyed relevant documents; and
· if Ms. Fehr is found to have been dishonest and deceptive about certain corollary facts, then that finding would reflect Ms. Fehr’s conscious guilt and the Fehrs will have failed to meet the burden of proof.
[30] There is no independent evidence that Ms. Fehr used business funds to buy the ticket and the plaintiff’s claim rests on her ability to convince a trial judge that Ms. Fehr is untruthful in her evidence that Mr. Fehr was the source of the money to buy the ticket. Ms. Ganguin was not present when the ticket was purchased but points to a number of inconsistencies in Ms. Fehr’s evidence that, when taken together, may raise questions as to Ms. Fehr’s credibility. She argues that she has no means by which she is able to affirmatively prove her case and that it would be unfair to decide the issue without oral evidence and cross-examination before a trial judge. For these reasons, she says this proceeding is not suitable for a summary trial.
[31] Ms. Ganguin argues that if a trial judge disbelieves Ms. Fehr on her evidence, then he or she may be able to conclude that Ms. Fehr was untruthful about the source of the money and that it is more likely than not that Ms. Fehr used money from the box to purchase the ticket. Because all of the facts about the purchase of the ticket are within the knowledge of Ms. Fehr, Ms. Ganguin argues that the burden of proof shifts to Ms. Fehr to prove that Mr. Fehr gave her the money for the ticket. If the burden of proof is shifted to the defendants, a trial judge might more readily reach a conclusion that the defendants failed to discharge the burden on a balance of probabilities.
[32] Ms. Ganguin also argued that the counterclaim in this action for an interest in the coffee truck business ought to be considered in refusing the application to decide this case on a summary trial basis.
[33] The defendants argue that, on the totality of the evidence, there is a strong case that Ms. Fehr purchased the winning ticket with funds provided by Mr. Fehr and there is no evidence to the contrary. They argue that the plaintiff’s theory of the fraud involving Mr. Fehr, his son and Ms. Fehr is wholly inconsistent with all of the evidence.
[34] The defendants say there is no evidence to support Ms. Ganguin’s claim and any evidence supporting her claim does not discharge the plaintiff’s burden of proof on the balance of probabilities.
[35] Ms. Fehr says that no adverse inference can be taken from the loss of records in her possession from November 2008 outlining revenue, expenses and lottery ticket purchases. Legal proceedings were not pending at the time they were lost and, therefore, no inference can be drawn from the failure to produce them.
[36] The defendants argue that this proceeding is suitable for determination by summary trial. They say there is no conflict on the substantive evidence and that because Ms. Ganguin has adduced no evidence to dispute their version of the facts, the Fehrs should succeed and the action should be dismissed.
[37] In my view, the result in this application under Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), turns on whether it is appropriate to deny the plaintiff a full trial where her prospect of success depends on her ability to persuade the Court to disbelieve Ms. Fehr and reach negative conclusions from their evidence. She argues that if the evidence on this application is tested at a full trial, the judge may conclude that Ms. Fehr’s testimony about the source of the money used to buy the ticket is untruthful. The Court could then conclude that the ticket purchase money came from joint business funds and Ms. Ganguin would be entitled to one half of the prize money. She will be denied the opportunity of full cross-examination of all of the witnesses unless the claim is referred to trial.
[38] It is likely that Ms. Fehr will be called as an adverse witness under Rule 12-5(20) for cross-examination. If her credibility is not successfully challenged, it is likely Ms. Fehr would succeed on a no-evidence motion for dismissal of the claim. Without more favourable evidence than was tendered on this application, I expect there will be a substantial risk of the action being dismissed on that motion.
[39] The analysis for summary trial applications begins with Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) [Inspiration Management], where McEachern C.J.B.C. stated at 215:
The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to law unless he has the opinion that it will be unjust to give such judgment.
In deciding whether the case is an appropriate one for judgment under R. 18A, the chambers judge will always give full consideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient for adjudication. For example, the absence of an affidavit from a principal player in the piece, unless its absence is adequately explained, may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do so. But even then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue.
[40] This principle was reiterated in Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 [Mallmann], with respect to an absence of evidence on a R.18A (now Rule 9-7) application.
[41] In Mallmann, at para. 34, the Court observed that all reasonable steps to prepare for a summary trial must be taken by a party. Parties are not permitted to frustrate the summary trial process. The Court confirmed that a party cannot normally insist on a full trial “in hopes that with the benefit of viva voce evidence, ‘something might turn up’”:
[34] ... In this instance, it was not realistic for Everest to hope that the Court at the summary trial would of its own volition decline to proceed because it was being asked to determine issues of dishonesty, or because the possibility of certain viva voce evidence had been discussed in a different context.
[42] In Hamilton v. Sutherland (1992), 68 B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (C.A.) [Hamilton cited to B.C.L.R.], the Court said at 120:
[15] It may not be possible until a case is closed to determine which, if either, subcls. (a) and (b) of R. 18A(5) has application. On the other hand, it may be clear at the outset that the affidavit evidence cannot support or does not address the relief sought.
[16] An example of the latter circumstance, relied upon by the appellant here, is Bank of British Columbia v. Anglo-American Cedar Products Ltd., (1984), 57 B.C.L.R. 350, 47 C.P.C. 89 (S.C.). This was an action on a guarantee. The defence alleged the plaintiff was in breach of express or implied collateral terms and fraudulent or negligent misrepresentations. At p. 353 [B.C.L.R.] Mr. Justice Macdonald noted that while the plaintiff's case was a strong one and that of the defendant relatively weak, it was correct, in a case of that kind, to acknowledge that the defendant's case will in large part be made, if it is to be made at all, out of the plaintiff's own documents and the explanations of the plaintiff's witnesses in connection therewith. He concluded by saying:
Where there is a real possibility that the defendant can bolster its defence by discovery of documents and examinations for discovery, and there is a triable issue disclosed on the material now before the court, it would be unjust to decide the issues on this application.
....
[66] The courts are reluctant to decide actions summarily where the evidence set out in the affidavits is conflicting and credibility is an issue. But that is not the case here. The essential features of Mrs. Mills' condition and what and where she did those things which are relevant to the issues raised in the pleadings are not in dispute. The evidence upon which the trial judge relied in finding that the proponent of the 1981 will and of the 1985 codicil had met the onus of testamentary capacity was not directly challenged. The evidence or lack of evidence upon which he found the allegation of undue influence failed is not challenged except in minor and, in my opinion, irrelevant aspects. The suggestion that evidence might exist supporting the allegation of undue influence is speculative.
[67] The appellant's case comes to this: with the aid of the discovery processes something might turn up. This brings me again to the statement I have quoted from Inspiration Management, supra, at p. 214:
In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.
[Emphasis added.]
[43] Mallmann and Hamilton appear to be against the plaintiff’s position on this application. However, the application must be assessed on a review of all the factors as they apply to the facts of this case in order to determine whether it would be unjust to give judgment on this application.
[44] The subject matter of this action is an enormous amount of money, which is even more significant bearing in mind the modest circumstances of the parties before the purchase of the winning ticket. However, the amount cannot completely overshadow access to the summary trial procedure if the claim is otherwise suitable for judgment on the evidence tendered (see Mallal v. Murphy (1999), 37 C.P.C. (4th) 75 (B.C.S.C.) at paras. 7-8).
[45] The facts and issues in the claim are straightforward. The issue is simple: did Ms. Fehr use joint business property to purchase the winning ticket? The secondary issue is whether the burden of proof shifts from the plaintiff to Ms. Fehr. I will later deal with the factual circumstances in relation to which the only direct evidence comes from Ms. Fehr.
[46] There was no evidence suggesting urgency in a resolution of this dispute. The plaintiff waited two years before commencing this proceeding and neither party expressed any concern about prejudice inherent in any delay. I do not believe the matter is set for trial at this point in time, which is further support for my view that the parties do not view delay as a serious issue.
[47] There is always cost-saving if a matter can be resolved by way of a summary application. The Fehrs view cost as an issue because the direct evidence marshalled in support of the defence is overwhelming. The parties have completed several days of examination for discovery and there appears little more to do in the action except for the trial itself.
[48] I must weigh the actual trial costs against the amount at issue and the prospects of proving the plaintiff’s case at a full oral hearing.
[49] It is my view that the plaintiff will likely call Mr. and Ms. Fehr as adverse witnesses for cross-examination before concluding her case so as to avoid the risk of a successful no-evidence motion. On the evidence advanced by the plaintiff to date, she will have a difficult time succeeding in her action.
[50] However, I do not perceive this as being a lengthy or expensive trial to complete. The cost of moving forward to trial does not militate in favour of a summary trial.
[51] The ultimate issue is whether I can achieve a just and fair result by proceeding summarily (see MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270, at para. 22).
[52] I accept the assertions of the defendants that Ms. Fehr normally purchased lottery tickets for the business when buying gas. The records indicate that she did not buy a lottery ticket with the gasoline purchase on November 28, 2008. The parties understood that each might buy lottery tickets for themselves, provided that they used their own funds for that purpose.
[53] Mr. Fehr and Jason Fehr confirmed that Mr. Fehr gave $20 to Ms. Fehr on the morning of November 28, 2008 for the purpose of buying a lottery ticket.
[54] There is a dispute in the evidence about whether the business was sufficiently prosperous at the time to allow the parties to buy lottery tickets from their business funds and whether they had jointly decided not to purchase tickets at the time.
[55] Ms. Fehr affirmed that she purchased tickets for the business when business was good. However, there is evidence that she also bought tickets when sales were not as prosperous. Further, the business records produced do not clearly demonstrate that the business was doing poorly at the time of the purchase of the winning ticket.
[56] Further, there was a discrepancy in Ms. Fehr’s evidence about what she knew about the lottery prize when she received the $20 bill from Mr. Fehr. She said she told him that the prize was $25 million; at discovery, she said she did not know the prize was $25 million when she went to his worksite.
[57] Ms. Ganguin argued that some of this evidence might lead to a conclusion that Ms. Fehr is not truthful and did not use personal funds to purchase the ticket. Ms. Fehr did not put a note on the ticket that it was her personal purchase in the way she might have done in the past after purchasing a ticket from personal funds. Ms. Fehr testified that she alone had decided to stop buying tickets from business funds. Her evidence with respect to the events on November 28, 2008 at discovery somewhat differed from what was recorded in her affidavits.
[58] The implications of the Court's view in Hamilton are that where the parties have: (a) taken all reasonable pretrial measures to prepare for trial, (b) tendered all of the evidence within their control, and (c) that evidence is not seriously challenged, then the issues are determinable at a summary trial. If the plaintiff’s evidence is insufficient, then the action should be dismissed. If there are conflicts in the evidence and credibility is an issue, then normally the issues should not be decided on a summary basis.
[59] The decisions in Mallmann and Hamilton eschew the prospect of allowing a full trial on the basis that something might turn up that would contradict the result mandated by the evidence disclosed in the summary trial materials. These cases are against the plaintiff’s position on this application.
[60] However, there seems to be more to the plaintiff’s claim than mere speculation about what may arise if the action is sent to trial. In this case the parties have taken all reasonable steps to prepare for trial, but the essential facts are solely within the knowledge of the defendants. In the context of lottery cases, where all of the evidence is in the hands of only one party, the burden of proof becomes an issue as well as the emphasis on testing that party’s credibility.
[61] The Court of Appeal’s decision in Quiamco v. Gaspar, [1985] B.C.J. No. 1661 (C.A.), illustrates this point. That case also dealt with a lottery ticket claim and the Court said:
[23] In this case the points at issue involve interpreting the evidence as a whole, and particularly findings of credibility, depending to a great extent on the demeanour and conduct of the witnesses at trial. We do not have the advantage that the trial judge had in that respect and ought to be very slow to interfere. I see no basis for interfering with the findings of the trial judge made in this case.
[24] The second ground is said to involve a question of law: a question where the onus lies in respect to proving an explanation such as that given by Gaspar to the Court. I do not think that the trial judge erred in applying the principle that where the subject matter of the allegation lies particularly within the knowledge of one of the parties that party must prove it, whether it be of an affirmative or a negative character. See Pleet v. Canadian Northern and Quebec Railway Company (1921) O.L.R. (Ontario Court of Appeal) at 227.
[25] The authorities have also been examined in Diamond v. British Columbia Thoroughbred Breeders Association Society (1965) 2 D.L.R. (2d) 146 at 160, a decision of the British Columbia Supreme Court.
[26] The defendant had advanced the proposition that the winning ticket could not have been the one discussed on October 13, that is, during the pipe incident, because he had not taken delivery of his ticket until October 28th. The facts pertaining to that position were almost entirely within the knowledge of the defendant. In having raised the issue I think the defendant ought to have been obliged to prove it. But, the question of onus in this case was really unimportant because the explanation, if it was to be believed, depended upon the evidence of the defendant Gaspar and of Mr. Waller, the ticket vendor, who regularly sold lottery tickets to the defendant. The judge heard that evidence and he disbelieved the defendant and he found Waller's evidence to be unreliable. In short, he did not accept the explanation and it fell to the ground. But, in any event, the trial judge after having discussed the onus of proof went on to say that should he be mistaken on that ground that he was content to find that the conduct of the defendant after he discovered he had won the $1,000,000 prize was the basis for drawing the adverse inference against him.
[27] In short, he inferred from that conduct, from the numerous lies told by Gaspar in respect of the lottery ticket, and from the devious conduct of the defendant, that the ticket in which he had sold an interest to Quiamco on October 13, 1982, was probably the ticket which won the lottery. That was sufficient to dispose of the case.
[Emphasis added.]
[62] In my view, Quiamco assists Ms. Ganguin in resisting the determination of this case on a summary trial. In this case, the subject matter of Ms. Ganguin's allegation lies particularly within the knowledge of Ms. Fehr. Ms. Fehr alone knows the source of the $20 used to buy the successful lottery ticket. She says that the money was not the common property of her business with Ms. Ganguin. It seems that Ms. Ganguin should have the opportunity to challenge Ms. Fehr’s credibility on this issue.
[63] In Quiamco, the Court highlighted the importance of credibility, and the demeanor and conduct of the witness at trial. In that case, the Court did not interfere with a trial judge's findings after a full trial. In the case at bar, Ms. Ganguin’s success, if any, will depend on demeanour and credibility in relation to the single issue of whose money was used to purchase the ticket.
[64] Although Ms. Ganguin will approach the trial with the hope that some further evidence or inferences will emerge at a full trial, there is merit in the approach she urges on this application. The comments of the Court in Quiamco illustrate the unusual facts in lottery ticket cases that merit a full trial in this case.
[65] Although Ms. Ganguin may have a steep uphill struggle to shake Ms. Fehr’s credibility to the extent that a trial judge might disbelieve Ms. Fehr on the central issue, it is my view it would be unjust to deprive Ms. Ganguin of a full trial.
[66] Further assistance for this conclusion is found in the treatment of other lottery ticket cases cited by Ms. Ganguin. In Begin v. Harnden, [2004] O.T.C. 108, O.J. No. 529 (Sup. Ct. J.), the Court considered an arrangement whereby the parties had agreed to share the cost of purchasing expensive lottery tickets and share the winnings for several years. In that case, the plaintiff gave the defendant $20 for the purchase of one lottery ticket. The parties had discussed the possibility of the defendant’s daughters purchasing two tickets, thereby reducing the cost of an individual ticket from $40 to $33. The defendant eventually purchased three tickets with her two daughters and won $100,000; the defendant argued that she had purchased three tickets with her two daughters and did not have an agreement with the plaintiff to share the winning ticket. The Court reviewed a wide range of events and statements that occurred after the defendant’s ticket won. The trial judge concluded that the plaintiff had given the defendant $20 for the purchase of a one half interest in the lottery ticket and the plaintiff was awarded a one half interest in that ticket.
[67] In Macatula v. Tessier, 2003 MBCA 31, leave to appeal ref’d [2003] S.C.C.A. No. 206, the Manitoba Court of Appeal considered a lottery ticket case. The facts in that case were the plaintiff’s husband purchased a ticket and gave it to her. She gave the ticket to the defendant following a long-standing agreement where they agreed to share the cost of lottery tickets and divide the proceeds. The defendant asserted that the plaintiff had purchased a ticket for her and that she paid the five dollar purchase price. The Court of Appeal, in upholding the trial judge’s finding, dealt with the credibility of the witnesses and concluded that it believed the plaintiff and disbelieved the defendant after a full trial.
[68] In Bousfield v. Marshall, [2002] O.T.C. 156, the Ontario Superior Court dealt with a similar issue. In that case, the defendant and plaintiff purchased lottery tickets jointly and separately under the agreement that they would split the winnings regardless of which party purchased the ticket. The defendant purchased a winning ticket and refused to share the prize with the plaintiff. In that decision, the Court uncovered a lie told by the defendant. The Court said:
[64] The point of the lie is threefold.
[65] First, the dishonesty of the Marshalls in making up the deliberate lie and carrying out the elaborate deception detracts from their credibility.
[66] Second, their innocent explanation for the lie is implausible and unsupported by the evidence. The lie is more consistent with an attempt to deflect Robert's natural suspicion that the winning ticket was Lawrence's and not Gerry's. The fact the Lawrences felt driven to lie underlines the implausibility of their story.
[67] Third, in the absence of any plausible innocent explanation, the lie reflects consciousness of guilt on the part of the Marshalls.
[69] This analysis is apposite to Ms. Ganguin’s position in this action. If Ms. Fehr was driven to lie about some of the circumstances surrounding the acquisition of the ticket and ownership of the ticket at the time, it may be open to a trial judge to conclude that those untruths reflect consciousness of guilt. In those circumstances, it is possible the trial judge could find in Ms. Ganguin’s favour. It seems to me the tension between Ms. Fehr’s need for a full trial to test Mr. and Ms. Fehr’s testimony and the paucity of evidence to contradict the Fehrs on this application are an answer to the conclusions reached by Goldie J.A. in Hamilton.
[70] To be successful, Ms. Ganguin will need the trial judge to disbelieve the Fehrs on significant issues surrounding Ms. Fehr’s conduct and statements related to the business and the purchase of the ticket. If sufficient inconsistencies or contradictions are found in her evidence, the Court may conclude that Ms. Fehr was, more likely than not, untruthful about the source of the money used to buy the ticket. That finding will be pivotal to Ms. Ganguin’s success at trial. In my view, without the benefit of a full trial, her claim is destined to fail.
[71] A summary trial application concerns a question of whether it is unjust to give judgment. The chambers judge must determine whether the evidence is sufficient for adjudication. The absence of key evidence may make adjudication unjust; however, the process is adversarial, and it is for the judge to determine whether the issues can be fairly and justly decided on the facts as presented.
[72] I recognize it is also important to keep in mind the object of the Rules, as expressed in Rule 1-3(1), which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”
[73] There is no absolute right to a full trial in the face of a summary trial application. Inspiration Management characterizes a full trial as a luxury not available for every case. Summary trial applications are designed to provide meaningful access to adjudication that is just, speedy, and inexpensive, consistent with the object of the Rules. If there is a conflict in the evidence or an issue requiring the assessment of the credibility of a witness on the basis of viva voce evidence to make findings of fact, then a full trial is appropriate.
[74] In this case, counsel have adequately prepared and could not be sent away to prepare better affidavit material so that the Court can fairly and justly adjudicate the issues. The evidence was well organized and the arguments were fully developed.
[75] The issue is whether it would be just in all the circumstances to grant judgment without a full oral hearing of the defendants’ cross-examination.
[76] This is an unusual case. On the basis of the evidence of the parties’ affidavits and the evidence tendered from their examinations for discovery, the defendants have a strong case for dismissal at this summary trial application. However, I am not wholly satisfied that justice would be served by allowing the application.
[77] I am satisfied that the reliability and credibility of Ms. Fehr's evidence should be assessed before a trial judge. I accept that, in the context of these facts, proving the plaintiff’s claims will require the Court to disbelieve the defendants’ evidence. If there is a shifting of the burden of proof, this may result in the plaintiff's success being determined principally on the assessment of Ms. Fehr’s credibility (see Quiamco at para. 24).
[78] Many of the cases suggest that summary trials may not be appropriate where further pretrial procedures might reveal evidence to support the responding party's position. In this case, those pretrial procedures have been completed and some conflicts are revealed in the affidavits and discovery evidence of Ms. Fehr. However, I am not convinced that it would be just to decide this case summarily because the essential facts are solely within the knowledge of Ms. Fehr. The process of weighing the parties’ viva voce evidence may lead to a different conclusion than that which would flow from a straightforward analysis of the affidavit material.
[79] The parties have tendered evidence from other persons who are not parties to this proceeding. These witnesses might be able to corroborate the evidence of the parties and I do not think it would be appropriate to limit Ms. Ganguin’s efforts to a cross-examination of the parties on their affidavit evidence.
[80] In the result, the amount involved, the issue of the burden of proof, the lack of urgency or prejudice due to delay, the cost of moving forward to trial, and the importance of the defendants’ credibility collectively persuades me that this case is not suitable for a summary trial.
[81] In my view, the requirements of justice are against the determination of this action via summary trial. The application is refused.
“Armstrong J.”