COURT FILE NO.: 619/08

DATE: 20090112

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: thomas arnold v. Michael William john arnold, personally, and in his capacity of Estate Trustee with a Will in the Estate of Joseph Edward Arnold, deceased

BEFORE: Justices Carnwath, Swinton, & Bellamy

COUNSEL: Vusumzi Msi, for the applicant/appellant in appeal

John W. Montgomery, for the respondent/respondent in appeal

HEARD AT TORONTO: January 9, 2009

E N D O R S E M E N T

Bellamy, J.

[1] This is an appeal from a decision of Madam Justice Boyko in which she allowed an application by the respondent to pass accounts and also approved the accounts as amended. The appellant asks that the decision be set aside, and that the matter of the passing of the accounts of the estate trustee be referred for a trial of an issue with respect to a promissory note and the executor’s claim for compensation.

Background

[2] This is a dispute between two brothers, Thomas and Michael Arnold, over the estate of their late father, Joseph Arnold (“the deceased”), who passed away in September, 2002. Before his father’s death, the respondent managed his father’s affairs pursuant to a continuing power of attorney. In his will dated October 25, 2001, the deceased appointed the respondent as executor. He left the residue of his estate to his three sons in equal shares. Within four months of his death, seventy-five percent of the estate had a been distributed on consent. Each son received around $1 million. At issue between the appellant and the respondent remained an outstanding amount of close to $286,000, which was amended to $104,524.84.

[3] In January, 2006, the respondent applied to the Superior Court of Justice for approval of the accounts. When the matter came before Boyko J., the appellant objected to the accounts on a number of grounds:

• He alleged the respondent continued to owe the estate $120,000 on a promissory note;
• He argued the respondent should not be entitled to any compensation under the Substitute Decisions Act, S.O. 1992, c. 30, s.40 (SDA);
• He disputed the calculation of the claim for estate trustee compensation of $46,441.83; and
• He contended that the estate’s claim regarding his $42,000 promissory note was statute barred.

[4] This application had resulted in numerous separate court appearances over two years. When the matter finally began before Boyko J. on December 13, 2007, respondent’s counsel (not Mr. Montgomery) informed the court that, in an attempt to finally resolve matters, the respondent decided to agree that any and all promissory notes owed by any of the children of the deceased would be considered statute barred and would be deleted from the assets in the accounts. As well, the respondent reduced his claim under the SDA to $45,000 which was less than half his outstanding claim. As a result of these reductions, there remained $104,524.84 to be distributed: $34,841.94 to each of the three sons.

[5] The appellant conceded that some of these compromises addressed his concerns, but submitted that there should be no SDA payments as he, not the respondent, had performed some of the work that had directly benefited the estate. Further, for six years he had been power of attorney for both his parents, yet never had he claimed any SDA compensation despite having undertaken many important and difficult legal tasks for his parents. As he had not received compensation, neither should the respondent. He also argued that there should be a trial of an issue with respect to the $120,000 promissory note and with respect to the claim for estate trustee compensation.

Standard of Review

[6] The decision of whether to order a trial of an issue is discretionary. It should not be interfered with unless it was based on incorrect principles or is clearly wrong.

Analysis

[7] The application judge did not err when she concluded there was no need for a trial of the issues with respect to either the promissory note or compensation of the respondent. She had ample evidence before her to allow for a conclusion that such a trial was unnecessary.

[8] First, the promissory note had been forgiven in December 2000. There was an unconditional release of the promissory note and a discharge of the collateral mortgage, both signed by the deceased in December 2000. Moreover, there were two affidavits from the deceased’s long-time solicitor in which he swore that in October 2001, the deceased revised his will and informed the solicitor, among other things, that he had previously executed a release of this promissory note and a discharge of the collateral mortgage. Faced with this overwhelming evidence, there was no need to direct a trial of an issue with respect to the promissory note or the underlying debt.

[9] Second, whether or not the appellant had ever chosen to claim compensation under the SDA was irrelevant to whether the respondent, who had acted as the deceased’s continuing power of attorney, was statutorily entitled to such compensation. The application judge found the proposed compensation, which was less than half of the original claim, to be reasonable. There is no reason to interfere with her discretion in this regard.

[10] The respondent, in his capacity as executor, is entitled to compensation. This court should not interfere with Justice Boyko’s determination of the amount approved unless she committed an error in principle or unless the amount of compensation was grossly excessive: Laing Estate v. Hines, [1998] O.J. No. 4169 (Ont. C.A.), at para. 10. I am not persuaded that she committed any such error.

[11] Finally, while conceding the court had jurisdiction to proceed with the hearing, the appellant argues that because he was self represented, the matter should have been referred for a trial of an issue under s.49(2) of the Estates Act, R.S.O. 1990, c. E.21. The transcript does not support the appellant’s suggestion that he was “forced to appear by himself” and certainly does not support any conclusion that the court forced him to appear without legal counsel. At no time did he ask for an adjournment to obtain counsel. In any case, this matter had come before the court numerous times when the appellant was represented by counsel. When he no longer had counsel, he was given two adjournments to obtain new counsel. By the time the matter arose before Justice Boyko, it had been marked peremptory to the appellant.

Conclusion

[12] For the reasons given above, the appeal is dismissed. The appellant shall pay the costs of $5,000 inclusive of disbursements, G.S.T. to the respondent within thirty days.

Bellamy, J.

I agree ______________________________

Carnwath, J.

I agree ______________________________

Swinton, J.

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