Court File and Parties
CITATION: Assaf v. Bosada, 2010 ONSC 2209
DIVISIONAL COURT FILE NO.: 150/09
DATE: 20100414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ESTATE OF EDWARD ASSAF, DECEASED, BY ITS EXECUTOR WILLIAM ASSAF AND THE ESTATE OF VIVIAN ASSAF
Appellant/Respondent
– and –
THE ESTATE OF ROBERT BOSADA, former trustee of the ESTATE OF EDWARD ASSAF, deceased
Respondent on Appeal
(Moving Party)
Graham Pinos, Q.C., for the Appellant/ Respondent, Estate of Edward Assaf (deceased)
Bernard Burton, for the Respondent, Estate of Robert Bosada (deceased)
HEARD at Toronto: April 14, 2010
Oral Reasons for Judgment
MCCOMBS J. (ORALLY)
[1] In a detailed fifty-seven page judgment released February 26, 2009, Strathy J. detailed the tortuous history of the litigation in this estate matter. In the end, he concluded that although estate trustee Robert Bosada had committed forgery and perjury with respect to estate issues, he should not be entirely deprived of fees.
[2] Strathy J.’s decision to depart from the general principle - that an estate trustee who has engaged in misconduct of this nature should be denied compensation - was based on his findings of fact concerning the “egregious” conduct of William Assaf during the approximately twenty year period that Mr. Bosada was estate trustee.
[3] The estate of Vivian Assaf has appealed the order of Strathy J. As his order was a final order, leave is not required. The moving party (respondent on appeal) seeks an order quashing the appeal on the basis that it is utterly and manifestly devoid of merit.
[4] As I have already indicated, Strathy J.’s order represented a departure from the normal result where there has been a finding of serious misconduct by an estate trustee.
[5] In those circumstances, I am unable to conclude that the appeal is utterly bereft of merit to the point where I should take the extraordinary step of quashing the appeal.
[6] I conclude that the appellants are entitled to argue their appeal, and the motion to quash is dismissed.
[7] The alternative motion for security for costs is dismissed. There is money paid into Court that in my opinion is sufficient to cover any costs order made by the panel hearing the appeal. I decline to make the order sought by Mr. Burton that a portion of the money paid into Court be set aside for security for costs.
[8] Costs of this motion are reserved to the panel hearing the appeal.
MCCOMBS J.
Date of Reasons for Judgment: April 14, 2010
Date of Release: April 19, 2010
CITATION: Assaf v. Bosada, 2010 ONSC 2209
DIVISIONAL COURT FILE NO.: 150/09
DATE: 20100414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ESTATE OF EDWARD ASSAF, DECEASED, BY ITS EXECUTOR WILLIAM ASSAF AND THE ESTATE OF VIVIAN ASSAF
Appellant/Respondent
– and –
THE ESTATE OF ROBERT BOSADA, former trustee of the ESTATE OF EDWRAD ASSAF, deceased
Respondent on Appeal
(Moving Party)
ORAL REASONS FOR JUDGMENT
MCCOMBS J.
Date of Reasons for Judgment: April 14, 2010
Date of Release: April 19, 2010