David G. Waites

The applicant, Sandra Van Ruymbeke, executor of Mary Powers' estate, sought orders compelling two respondents (siblings Connie Van Ruymbeke and Susan Salenbien) to pass accounts related to a continuing power of attorney for property, and an order to transfer farm properties from Mary's estate to Mark Van Ruymbeke's estate (represented by Connie as Estate Trustee During Litigation).

The court granted the order for Susan Salenbien to pass accounts, as her role as attorney for property was undisputed.

However, a fundamental dispute arose regarding whether Mark Van Ruymbeke was ever granted or acted under a power of attorney for property, which impacts the court's jurisdiction and potential limitation period defenses.

The court found the power of attorney document ambiguous and ordered a trial of an issue to determine Mark's status and conduct, adjourning the request for Connie to pass Mark's accounts until after this determination.

The transfer of farm properties was also addressed with specific conditions.

The applicant father sought to rectify a Declaration of Trust concerning a 100-acre farm, arguing that he and his deceased son were mistakenly reversed as 'Trustee' and 'Beneficiary' by the drafting lawyer.

The respondent widow, acting as estate trustee, brought a cross-application to uphold a severance of the joint tenancy she executed under a power of attorney before the son's death.

The court applied the Fairmont Hotels test and found a mutual mistake, rectifying the Declaration of Trust to show the father as the beneficiary.

Consequently, the court set aside the severance of the joint tenancy and ordered the land registry rectified to show the father as the sole owner by right of survivorship.