Court File and Parties
COURT FILE NO.: 471/08
DATE: 20081027
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LINDA SUSAN DYETT
Applicant
- and -
ARTHUR ERNEST HAINES JR., KATHLEEN OCKENDEN, DALY KRUGER and ALBERT JOHN HAINES
Respondents
Gregory M. Sidlofsky, for the Applicant
Allan Rouben, for the Respondents
HEARD at Toronto: October 27, 2008
Reasons for Judgment
JANET WILSON J.:
[1] The applicant’s request for leave to appeal from the decision of Strathy J., dated September 10, 2008 is dismissed. Strathy J. set aside the unopposed judgment granted by Aston J. for the passing of the estate accounts. Strathy J. concluded that Mr. Wagner, the applicant’s counsel had not disclosed all relevant material to the Court. He also concluded that the applicant’s counsel was in breach of his obligations to opposing counsel and to the Court by knowingly taking advantage of a slip by opposing counsel.
[2] This estate matter is highly contested and involves a fight between siblings. The applicant had control of her mother’s finances for four years prior to her mother’s death. The Court ordered that the applicant pass accounts for this period. Upon receipt of the accounting in June 2008, counsel for the respondent siblings made it clear in correspondence that he wished to cross-examine the applicant and suggested that the matter proceed to mediation. He suggested that the application for the passing of the accounts be stayed.
[3] Mr. Wagner’s office responded in a letter dated June 23, 2008 confirming that:
“At present, we have no objection to a stay of the application in order to complete cross-examinations, mediation and other necessary steps in this litigation.”
[4] The respondent did not file a notice of objection with respect to the accounts in accordance with the strict timelines.
[5] On September 2, 2008, Aston J., in an over-the-counter uncontested motion approved the accounts on an uncontested basis. The above noted exchange of correspondence was not filed before Aston J..
[6] On September 5, 2008, unaware that the accounts had been passed, counsel for the respondents wrote a letter detailing various concerns with respect to the accounts that had been presented. The applicant refused to set aside the judgment of Aston, J.. The emergency motion before Strathy J. followed immediately thereafter.
[7] I conclude that there is no basis to grant leave to appeal pursuant to s.62.02(4)(a) or (b) of the Rules of Civil Procedure. There is no conflicting decision on this issue and it is not desirable that leave be granted. In my view, Strathy J.’s decision is correct and this matter does not raise issues of importance justifying leave being granted for a hearing before the full Divisional Court.
[8] Counsel was in clear breach of his obligations to the Court and to opposing counsel in proceeding with the uncontested passing of accounts in the circumstances of this case. Mr. Wagner’s actions smack of sharp practice. Counsel for the respondents sought full indemnity costs in the amount of $6,000.00. No request was advanced for costs to be paid by Mr. Wagner personally in this motion for leave to appeal.
[9] I conclude that the client should not be unduly penalized as a result of proceeding with this motion for leave to appeal. I therefore fix costs in the amount of $3,000.00 inclusive of GST, payable by the applicant to the respondent’s counsel forthwith.
JANET WILSON J.
Date of Reasons for Judgment: October 27, 2008
Date of Release: October 29, 2008
COURT FILE NO.: 471/08
DATE: 20081027
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
LINDA SUSAN DYETT
Applicant
- and -
ARTHUR ERNEST HAINES JR., KATHLEEN OCKENDEN, DALY KRUGER and ALBERT JOHN HAINES
Respondents
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: October 27, 2008
Date of Release: October 29, 2008