Westerlund v. Ayer

Westerlund v. Ayer

The trial judge’s specific credibility finding—that the August 8, 1958 document, though signed, was not what it purported to be and that the appellant did not comprehend or assent to it—was supported by the evidence and entitled to deference; non est factum (or fraud/ trick) was established as to the document and the respondent was not entitled to one-half the shares; appeal allowed to restore trial judgment.

Citation
[1971] SCR 131
Parties
Appellant/plaintiff: Fred Victor Westerlund; Respondent/defendant: Eva Geraldine Ayer
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
29 June 1970
Procedural Posture
Civil Appeal (contract/ownership Dispute) / Appeal to Supreme Court of Canada From British Columbia Court of Appeal
Outcome
Appeal allowed; judgment at trial restored in respect of company shares; cross-appeal dismissed.
Legal Topics
Non Est Factum, Ownership of Corporate Shares, Partition and Sale of Real Property, Credibility and Appellate Deference
Source Language
English
Contract Property Law Evidence Non Est Factum Ownership of Corporate Shares Partition and Sale of Real Property Credibility and Appellate Deference

Case Brief

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Parties

Fred Victor Westerlund

Appellant/plaintiff

Eva Geraldine Ayer

Respondent/defendant

Procedural Posture

Civil Appeal (contract/ownership Dispute) / Appeal to Supreme Court of Canada From British Columbia Court of Appeal

Legal Issues

  1. 1 Whether the document dated August 8, 1958 constituted a binding agreement conveying half the company shares to the respondent
  2. 2 Whether appellant’s plea of non est factum/fraud/trick succeeded despite his admitted signature
  3. 3 Whether appellate court should disturb trial judge’s adverse credibility findings

Ratio Decidendi

The trial judge’s specific credibility finding—that the August 8, 1958 document, though signed, was not what it purported to be and that the appellant did not comprehend or assent to it—was supported by the evidence and entitled to deference; non est factum (or fraud/ trick) was established as to the document and the respondent was not entitled to one-half the shares; appeal allowed to restore trial judgment.

Court Disposition

Appeal allowed; judgment at trial restored in respect of company shares; cross-appeal dismissed.

Orders

  • Allow appeal and restore trial judgment dismissing respondent’s counterclaim to one-half of the company shares.
  • Partition and sale of the real estate as ordered by trial judge affirmed.