Court Information
Court of Appeal for Ontario Date: November 21, 2018 Docket: C65164
Panel: Doherty, Brown and Trotter JJ.A. (sitting as Divisional Court)
Parties
Between
Elizabeth Wall (Applicant/Respondent)
and
Ian Paul Shaw, in his capacity as Estate Trustee of the Estate of Marjorie Ann Wall, and in his personal capacity (Respondent/Appellant)
Counsel
For the Appellant: Raymond G. Colautti and Susan Easterbrook
For the Respondent: Christopher Graham and Andrew Bala
Hearing and Appeal Information
Heard: October 26, 2018
On appeal from: The order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated March 14, 2018, with reasons reported at 2018 ONSC 1735, 38 E.T.R. (4th) 38.
Decision
Brown J.A.:
I. OVERVIEW
[1] This appeal raises a narrow issue. It involves an application by an estate trustee to pass accounts, some of which pre-date the issuance of the application by more than two years. In response to this application, a beneficiary filed a notice of objection to accounts that included objections to the accounts pre-dating the issuance of the application by more than two years. After having applied to pass those accounts, can the estate trustee move to strike out the objections pertaining to them on the basis that they are barred by the basic two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the "Limitations Act")?
[2] I conclude that the estate trustee cannot. By filing a notice of objection to accounts in response to an estate trustee's application to pass accounts, a beneficiary is not commencing a proceeding in respect of a claim within the meaning of s. 4 of the Limitations Act. I would dismiss the appeal.
II. JURISDICTION
[3] This appeal involves an order made in a passing of accounts proceeding under s. 49 of the Estates Act, R.S.O. 1990, c. E. 21. Section 10(1) of that Act provides that the appeal from the order of the motion judge lies to the Divisional Court, not to the Court of Appeal. However, this panel of the Court of Appeal has been authorized by the Chief Justice of the Superior Court of Justice to reconstitute itself as a panel of the Divisional Court to hear the appeal: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 13(2) and 18(2). The parties had no objection to the panel so doing. Consequently, the panel heard the appeal as a panel of the Divisional Court.
III. FACTS
A. The Will and the Administration of the Estate
[4] The appellant, Ian Paul Shaw, a lawyer, acted as estate trustee of the estate of the late Marjorie Ann Wall from the date of her death, August 11, 2005, until his resignation pursuant to the order of DiTomaso J. dated August 4, 2016.
[5] In her will, the deceased provided for two bequests. She directed her estate trustee to divide the residue into two equal shares to be held in trust for her daughter, the respondent, Elizabeth Ann Wall, and her son, Bruce Edgar ("Ted") Wall. The motion judge described the trusts at para. 5 of his reasons:
[The deceased] left the bulk of her estate to her two children in trust, until they attained the age of 60 years. The will further provided that the trustee had absolute discretion to pay funds to these two beneficiaries during their lifetime prior to reaching age 60. At the time of Marjorie's death, both children were under the age of 60. It is not disputed that the estate trustee paid certain sums to these two beneficiaries over the years. The will further provided that if both these beneficiaries did not reach the age of 60 years, then the residue of the estate was to be divided among Marjorie's nieces and nephews (the contingent beneficiaries). Bruce Edgar Wall passed away before reaching the age of 60. Elizabeth Wall is 54 and remains the sole vested beneficiary. If she reaches the age of 60, the discretionary trust will be collapsed and she will become the beneficiary of the entire estate. If she passes away before the age of 60, the trust will be collapsed and the nieces and nephews will become the sole beneficiaries of the estate.
[6] At the time of her death, the deceased's estate had a value of approximately $3 million, which included some real estate assets.
[7] Ted died in January 2014, before turning 60. Under the terms of the Will, the monies in trust for him were to be added to those in the trust for Ms. Wall.
[8] In the years following his appointment as estate trustee, Mr. Shaw did not apply to pass his accounts. However, he met annually with Ms. Wall and in some years with both children. The parties disagree about what took place at those meetings. Mr. Shaw deposes that at each annual meeting the beneficiaries approved his administration of the estate, including the amount of compensation he was taking. Ms. Wall contends the meetings focused on the distributions of trust income made to the beneficiaries in the preceding year, not the larger administration of the estate or Mr. Shaw's compensation.
B. The History of the Passing of Accounts Litigation
[9] Disputes eventually arose between Mr. Shaw and Ms. Wall about the compensation Mr. Shaw was taking as estate trustee.
[10] In October 2014, Ms. Wall issued a notice of application seeking an order directing Mr. Shaw to bring an application to pass his accounts for the entire period of time since her mother's death in 2005.
[11] Mr. Shaw consented to Pattillo J.'s January 15, 2015 order directing him to bring an application to pass his accounts for the period from the date of death until December 31, 2013. He issued a notice of application to pass accounts on March 31, 2015, for the period from August 11, 2005, until December 31, 2013.
[12] Several beneficiaries filed notices of objection to the accounts pursuant to r. 74.18(7) of the Rules of Civil Procedure. Ms. Wall filed a June 2, 2015 notice detailing numerous objections to the accounts. In January 2016, two nieces of the deceased, who would benefit under the will in the event Ms. Wall died prior to reaching the age of 60, also filed notices of objection to the accounts.
[13] In January 2016, Mr. Shaw moved to strike out Ms. Wall's notice of objection. This elicited a motion from Ms. Wall to remove him as estate trustee.
[14] By order dated February 16, 2016, Eberhard J. adjourned both motions sine die and sanctioned a procedure agreed to by the parties to prepare for a contested passing of accounts hearing, anticipated to be held towards the end of 2016.
[15] An August 4, 2016, consent order by DiTomaso J. then: (i) replaced Mr. Shaw with an institutional estate trustee; (ii) further adjourned Mr. Shaw's motion to strike sine die; (iii) gave directions regarding further steps in the passing of accounts application; (iv) directed the parties to attend a mediation; and (v) ordered that in the event the parties did not reach a mediated settlement, the passing of accounts hearing should be scheduled for the earliest date after April 30, 2017.
[16] No settlement was reached. Nor was a hearing held as directed because the estate trustee sought a hearing of his motion to strike Ms. Wall's notice of objection.
C. The Motion to Strike
[17] Mr. Shaw sought to strike out Ms. Wall's notice of objection in respect of his accounts for the period 2005 to 2012 on three grounds: (i) Ms. Wall's approval of the accounts at the annual meetings amounted to acquiescence; (ii) her claim was barred by laches; and (iii) her objections were time-barred by ss. 4 and 5 of the Limitations Act. He did not seek to strike the nieces' two notices of objection. The motion judge held, at para. 33, that he was not satisfied the doctrine of laches applied or that the annual meetings and initialing of the statements by Ms. Wall amounted to acquiescence. Mr. Shaw does not appeal those findings.[1]
[18] Before the motion judge, Mr. Shaw framed his argument based on the Limitations Act in the following manner:
Mr. Shaw does not dispute that he is required to pass accounts for the period from the date of death in 2005 until the date of his removal in 2016. What he does object to is a requirement to address the Objection to Accounts which were not filed until June 2, 2015. He submits that by reason of the Limitations Act, 2002 … he is not required to address any objection to accounts for the period from the date of death until December 31, 2012.
[19] The motion judge did not accept that submission. He held, at para. 31:
Based on the facts in Armitage v. The Salvation Army, 2016 ONCA 971, 406 D.L.R. (4th) 563, Hourigan J.A. found that the passing of accounts does not fit within the definition of a claim within the Limitations Act, 2002. In my view, if the passing of accounts does not constitute a claim, I am not satisfied that a Notice of Objection is a claim.
[20] Mr. Shaw appeals.
IV. ISSUE
[21] Mr. Shaw advances a single ground of appeal: the motion judge erred by refusing to apply the two-year basic limitation period in s. 4 of the Limitations Act to bar Ms. Wall's notice of objection in respect of the accounts for the period August 11, 2005 to December 31, 2012. Mr. Shaw submits that Ms. Wall seeks to assert "claims" against him because she is seeking a "remedy" in the passing of accounts proceeding – i.e. a reduction in his compensation from the estate.
[22] As I will explain, I do not accept Mr. Shaw's submission. I will begin by considering the legislative provisions governing an estate trustee's application to pass accounts. I will then consider the application of the Limitations Act to those provisions, first as a matter of statutory interpretation and then as a matter of policy.
V. THE LEGISLATIVE FRAMEWORK FOR APPLICATIONS TO PASS ACCOUNTS
[23] As noted in Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016) (hereafter "Probate Practice"), at p. 505:
It is the duty of all estate trustees, executors, administrators and guardians of property (as well as all trustees) to keep proper books of account and to be ready at all times to account for the trust property that they are bound to administer. However, in Ontario, there is no statutory requirement to pass accounts, and estate trustees, etc., may choose not to pass their accounts unless compelled to do so by the court at the instance of or on behalf of a person with an interest.
See also: Brian A. Schnurr, Estate Litigation, loose-leaf (2018-Rel. 6), 2nd ed. (Toronto: Thomson Reuters, 1994), at ch. 5.2; Estates Act, s. 50(1).[2]
[24] Section 49(2) of the Estates Act empowers a judge on a passing of accounts by an estate trustee, "to enter into and make full inquiry and accounting of and concerning the whole property that the deceased was possessed of or entitled to, and its administration and disbursement." Sections 49(3) and (4) further describe the procedure and judge's powers on an estate trustee's passing of accounts:
(3) The judge, on passing any accounts under this section, has power to inquire into any complaint or claim by any person interested in the taking of the accounts of misconduct, neglect, or default on the part of the executor, administrator or trustee occasioning financial loss to the estate or trust fund, and the judge, on proof of such claim, may order the executor, administrator or trustee, to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate or trust fund, but any order made under this subsection is subject to appeal.
(4) The judge may order the trial of an issue of any complaint or claim under subsection (3), and in such case the judge shall make all necessary directions as to pleadings, production of documents, discovery and otherwise in connection with the issue. [emphasis added]
[25] The Rules of Civil Procedure contain detailed rules governing the minimum informational requirements for accounts filed with the court by an estate trustee (r. 74.17) and the procedure that a passing of accounts application must follow (r. 74.18). Several features of r. 74.18 are relevant to the issue on this appeal:
The estate trustee brings the application to pass accounts (r. 74.18(1)) using a prescribed notice of application, which advises that any person with a financial interest in the estate may "object to the accounts" by serving a notice of objection and states that at the hearing of the application "the only issues upon which the court adjudicates are those raised in the notices of objection to accounts": r. 74.18(2);
A person with a contingent or vested interest in the estate may file a notice of objection to accounts (r. 74.18(7)), using a prescribed form, which must specify the grounds for any objection to the accounts or the amount of compensation claimed by the estate trustee;
Where a notice of objection is filed and not withdrawn, the application proceeds as a contested passing of accounts requiring a hearing under rr. 74.18(11.5) through (13.2) and the application judge may order that the entire application or any issue proceed to trial: r. 74.18(13.1);
Where no notice of objection is filed, the estate trustee "may seek judgment on the passing of accounts" without a hearing: r. 74.18(8.5) and (9); and
The forms of judgment prescribed by r. 74.18(14) (Forms 74.50 and 74.51): (i) declare the estate accounts passed; (ii) declare the capital and revenue receipts and disbursements of the applicant estate trustee; (iii) order the fair and reasonable compensation to be paid to the estate trustee out of the estate's assets; and (iv) deal with the costs of the application.
VI. ANALYSIS
[26] The applicability of the Limitations Act to a notice of objection served in response to a passing of accounts application under the Ontario Estates Act and the Rules of Civil Procedure is a novel question. The appellant contends that this question is answered by the Alberta Court of Appeal's decision in Saraceni v. Saraceni, 2013 ABCA 354, 561 A.R. 187, which established that limitations statutes apply to statutes governing estate administration in the absence of an express statutory exclusion.
[27] Saraceni is distinguishable from this case, in regard to the statutes it interpreted and the circumstances in which it applied them. First, s. 38 of the Alberta Administration of Estates Act, R.S.A. 2000, c. A-2, specifically contemplated the application of the Alberta Limitations Act, RSA 2000, c. L-12, to estate proceedings. Second, the language in s. 3(1) of the Alberta Limitations Act differs markedly from that in s. 4 of the Limitations Act. It grants a defendant immunity from liability if the claimant does not seek a "remedial order" within two years. By contrast, the Ontario statute bars the commencement of a proceeding in respect of a claim after the expiry of the basic limitation period. Finally, Saraceni concerned a notice of objection to a grant of probate, not a passing of accounts, which was brought eight years after the estate had been administered.
[28] The issue raised by the appellant therefore must be resolved by applying the wording of s. 4 of the Ontario Limitations Act to the regime for the passing of an estate trustee's accounts established by ss. 49 and 50 of the Estates Act and rr. 74.17 and 74.18 of the Rules of Civil Procedure. Section 4 of the Limitations Act only applies to a (i) "proceeding" commenced (ii) in respect of a "claim."
A. Does a Notice of Objection to Accounts Commence a Proceeding Within the Meaning of s. 4 of the Limitations Act?
[29] Section 4 of the Limitations Act states: "Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered" (emphasis added). A notice of objection to accounts does not commence a proceeding.
[30] Section 49 of the Estates Act and rr. 74.17 and 74.18 of the Rules of Civil Procedure create a passing of accounts procedure in which the estate trustee, not a beneficiary, is the applicant who commences the proceeding. Section 4 of the Limitations Act does not limit the ability of a person to respond to or participate in a proceeding commenced by another. That is what happens when a beneficiary files a notice of objection to accounts. She responds to a proceeding already initiated by the estate trustee.
[31] Mr. Shaw submits that although a beneficiary may respond to an existing proceeding by her notice of objection, that response is essentially a counterclaim and therefore commences a proceeding. Furrow and Zacks advance a variant of this argument in their article, "The Limitation of Applications to Pass Accounts". In their view, "[i]ssuing a notice of application commenced the proceeding on some earlier date; filing the notice of objection commenced the proceeding in respect of a claim": at p. 248.
[32] I am not persuaded by this argument, which founders on the language of s. 1.03 of the Rules of Civil Procedure. As the Limitations Act does not define the term "proceeding", this court usually takes guidance from the definitions found in the Rules of Civil Procedure: Giglio v. Peters, 2009 ONCA 681, 99 O.R. (3d) 129, at para. 21. It is significant that the definitions of "proceeding", and its constituent terms "action" and "application" in r. 1.03 of the Rules of Civil Procedure, do not include a r. 74.18(7) notice of objection. By contrast, a counterclaim falls within the definition of an "action" in r. 1.03 and, thus, within the definition of "proceeding". Nor does a notice of objection fall within the definition of "originating process", the document whose issuance commences a proceeding.
B. Is a Notice of Objection to Accounts a "Claim" Within the Meaning of s. 4 of the Limitations Act?
[33] As a notice of objection does not commence a proceeding within the meaning of s. 4 of the Limitations Act, strictly speaking it is not necessary to determine whether a notice of objection is a "claim" to which s. 4 would otherwise apply. However, because Mr. Shaw takes issue with the motion judge's application of this court's decision in Armitage to resolve that question, I will address it briefly.
[34] Section 4 of the Limitations Act bars the commencement of a proceeding in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 1 of that Act defines "claim" to mean "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission".
Application of Armitage
[35] In Armitage, this court held that an application by an attorney for property to pass accounts under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA") was not a "claim" within the meaning of the Limitations Act. Writing for the court, Hourigan J.A. stated, at paras. 27 and 29:
The fact is that in seeking court approval of the passing of accounts, an attorney for property is not seeking redress for any loss, injury, or damage. Rather, he or she is seeking approval from the court of his or her actions in managing the property, including approval for compensation previously taken or now sought. A passing of accounts application is the opposite of remedial; it is a process that seeks a court order that no remedy is necessary with respect to the accounts: see Furrow and Zacks, at pp. 9-10. Thus, the passing of accounts does not fit within the first part of the Limitations Act, 2002 definition of claim.
[36] Drawing on Armitage, the motion judge reasoned that if an estate trustee's application to pass accounts is not a "claim" within the meaning of the Limitations Act, then neither is a beneficiary's notice of objection filed in response to that application. That is because in a notice of objection "the beneficiary is seeking answers to questions about steps taken by the estate trustee during the currency of an administration of an estate": at para. 31. If the objections are accepted by the court, "no additional funds would be payable immediately to Elizabeth as beneficiary of the discretionary trust." However, "[t]he corpus of the estate would be enlarged … [which] ultimately, could increase the amount available to be paid to Elizabeth, but only if she survives to age 60": at para. 32.
[37] There is force to the argument that if the estate trustee's initial application to pass accounts is not a "claim" within the meaning of the Limitations Act, then neither is a responding objection made by the beneficiary within that proceeding.
[38] Mr. Shaw points to a footnote in Armitage to resist the force of that argument. Having found that a passing of accounts under the SDA is not subject to the basic two-year limitation period in the Limitations Act, the court added in a footnote:
I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by a beneficiary of a notice of objection after an attorney has sought a passing of accounts is a claim within the meaning of the Limitations Act, 2002. However, I leave this determination to another case where it arises directly on the facts. [emphasis added.]
[39] Mr. Shaw submits this footnote established that a notice of objection to accounts filed by a beneficiary is subject to the Limitations Act if the factual circumstances allow it to meet the definition of "claim" within that Act.
[40] I do not read Armitage in that way. The footnote is obiter, doing nothing more than leaving to another case the issue of whether a notice of objection could constitute a "claim". It does not resolve the matter, nor does it detract from the logic of the motion judge's reasoning.
The Effect of Pre-Taking of Compensation
[41] Mr. Shaw further contends that because the notice of objection seeks a reduction of compensation that he pre-took as estate trustee, which could result in an order that he pay money back to the estate, Ms. Wall is seeking "to remedy an injury, loss or damage that occurred as a result of [his] act or omission." He submits that if he had not pre-taken compensation, Ms. Wall's notice of objection might not be a "claim" because he would not have to repay any money.
[42] I am not persuaded by this argument.
[43] Pre-taking of compensation refers to an estate trustee taking compensation out of estate assets prior to passing his accounts. The general rule is that an estate trustee may pre-take compensation only (i) upon agreement of all persons with a vested or contingent interest (if they are sui juris), (ii) where approved by the court, or (iii) where the will so provides: Probate Practice, at p. 568.
[44] Although the practice of pre-taking compensation is common, an estate trustee that does so outside of those three circumstances risks liability for breach of trust: Probate Practice, at pp. 568-571; Re Knoch (1982), 12 E.T.R. 162 (Ont. Surr. Ct.), at p. 174. On a passing of accounts, the estate trustee risks court approval of a reduced amount of compensation and an order requiring repayment of the difference to the estate: Probate Practice, at p. 569; Re Pilo Estate, [1998] O.J. No. 4521 (Ont. Ct. J. (Gen. Div.)), at paras. 56-57.
[45] Whether a notice of objection to accounts constitutes a "claim" should not depend on the pre-taking of compensation. A notice of objection serves the same procedural function whether or not compensation has been pre-taken – it notifies the judge inquiring into the accounts of objections for which the estate trustee must provide explanations. The effect of a court accepting an objection to the estate trustee's compensation is also the same in both circumstances – a reduction in the estate trustee's approved compensation payable by the estate.
C. The Passing of Accounts Regime
[46] In addition to the language of the Limitations Act, the Estates Act and the Rules of Civil Procedure, the policy and practical implications of subjecting a notice of objection to accounts to the basic two-year limitation period in the Limitations Act also weigh against accepting the position advanced by Mr. Shaw.
The Nature of a Passing of Accounts Application
[47] As this court noted in Armitage, an application to pass accounts does not possess the remedial characteristics typically associated with a civil lis between two parties. Although s. 49(3) of the Estates Act refers to the judge's power to inquire into "any complaint or claim" of a person interested in the passing of accounts, it also highlights a key difference between a passing of accounts application and the typical civil proceeding: a passing of accounts initiates a judicial "inquiry" into the affairs of an estate. A conventional civil "claim", if successful, results in judgment in favour of the claimant. By contrast, after inquiring into a notice of objection on a contested passing of accounts, a judge "may order the executor … to pay such sum by way of damages or otherwise … to the estate," but the form of judgment prescribed by r. 74.18(14) does not provide for any personal remedy in favour of an objecting beneficiary: Estates Act, s. 49(3).
Maintaining the Balance of Power Between Estate Trustee and Beneficiary
[48] Finally, interpreting s. 4 of the Limitations Act as capturing r. 74.18(7) notices of objection to accounts would risk insulating an estate trustee's management of an estate from effective scrutiny. As mentioned, no Ontario law imposes an obligation on an estate trustee to pass accounts at fixed periods of time. Armitage holds that an application to pass accounts does not fall within s. 4 of the Limitations Act. As a result, an estate trustee can apply to pass accounts that pre-date the issuance of the application by more than two years.
[49] If a beneficiary was precluded by s. 4 of the Limitations Act from objecting to those accounts, an estate trustee who wished to avoid scrutiny would have a perverse incentive to simply "wait out" the two-year limitation period knowing that the beneficiary's objections would be statute-barred. The longer the estate trustee waited to pass accounts, the greater the period of his management of the estate he could remove from a contested hearing. While a court possesses the power to inquire into accounts in the absence of a notice of objection, as a practical matter the court relies on beneficiaries' objections to direct its inquiry.
[50] Such an uneven application of the Limitations Act would place many beneficiaries in the difficult position of having to rebut the presumption in s. 5(2) of the Limitations Act that they first knew of their "claim" against the estate trustee on the day the act or omission of the estate trustee – a questioned disbursement or taking of compensation - took place. To avoid such a result, beneficiaries would be forced to bring annual applications to compel estate trustees to pass accounts, unnecessarily increasing the amount of estate litigation in this province.
D. Conclusion
[51] I conclude that the filing of a r. 74.18(7) notice of objection to accounts in response to an application to pass accounts initiated by an estate trustee is not captured by s. 4 of the Limitations Act. Accordingly, the motion judge did not err in dismissing Mr. Shaw's motion to strike Ms. Wall's notice of objection.
VII. DISPOSITION AND COSTS
[52] For the reasons set out above, I would dismiss the appeal.
[53] The parties agree that they will return before the motion judge to fix the costs of the motion. As to the costs of the appeal, the parties agree that in the event the appeal is dismissed, Ms. Wall is entitled to costs in the amount of $10,000.00, inclusive of applicable taxes and disbursements. They disagree about who should pay those costs. Mr. Shaw submits that they should be paid by the estate; Ms. Wall argues that they should be the personal responsibility of Mr. Shaw.
[54] In my view, Mr. Shaw should be personally responsible for the costs. In bringing a motion to strike out the notice of objections he acted unreasonably and in his own self-interest. In those circumstances, he is not entitled to indemnification by the estate: Brown v. Rigsby, 2016 ONCA 521, 350 O.A.C. 236, at para. 14.
[55] I conclude that Mr. Shaw acted unreasonably for the following reasons. The Rules of Civil Procedure direct that an estate trustee who seeks to pass his accounts must use the summary form of civil proceeding – an application. Rule 74.18 creates a summary process where, in the event a notice of objection necessitates a contested passing of accounts hearing, the application judge can give directions for the process to adjudicate the contested issues: r. 74.18(13.1). Where on-going case management is available, those directions often are made by the case management judge: Re Vano (2009), 54 E.T.R. (3d) 280 (Ont. S.C.).
[56] Rule 74.18 was not designed for the summary passing of accounts process to become bogged down by time-consuming and cost-imposing pre-hearing motions. Appropriate directions for any necessary pre-hearing steps can be obtained from the application judge or case management judge in accordance with r. 74.18(13.1).
[57] I regard Mr. Shaw's motion to strike out Ms. Wall's notice of objection as substantially akin to a motion for partial summary judgment. He sought to eliminate the only detailed notice of objection to his accounts by obtaining, prior to the hearing, a final evidence-based determination that Ms. Wall's notice of objection had no effect because of acquiescence, laches or prescription. Had he succeeded, he would have cleared the way to seek an uncontested judgment on accounts.
[58] This court has held that motions for summary judgment are not available in proceedings commenced by way of a notice of application, in the absence of an order that converts the application into an action: Maurice v. Alles, 2016 ONCA 287, 130 O.R. (3d) 452, at paras. 32 and 33. Layering a "summary judgment" type motion on top of a "summary" application generally does nothing more than increase costs and delay the final adjudication of the dispute on the merits.
[59] That is what has happened in the present case. The order of February 16, 2016, directed the parties to follow an agreed-upon process to prepare for the passing of accounts hearing, which they were to schedule "on the first available date after October 31, 2016." That hearing did not take place.
[60] In his consent order for directions dated August 4, 2016, DiTomaso J. ordered that the passing of accounts trial be scheduled "on the earliest available date after April 30, 2017." That did not occur.
[61] Instead, a hearing on the merits was deferred until the "motion to strike" was argued in early 2018. Then this appeal was argued in October 2018. So, here the litigation stands, some two years after the hearing on the merits should have been held, mired in an unreasonable summary judgment-type motion by the estate trustee. That kind of litigation delay by an estate trustee who has been ordered to account for his administration of the estate is unacceptable.
[62] I would order that Mr. Shaw pay Ms. Wall costs of the appeal in the amount of $10,000, inclusive of disbursements and applicable taxes.
Released: November 21, 2018
"David Brown J.A." "I agree. Doherty J.A." "I agree. G.T. Trotter J.A."
Footnotes
[1] For a description of the doctrines of laches and acquiescence, see Matthew Furrow & Daniel Zacks, "The Limitation of Applications to Pass Accounts" (2016) 46 Adv. Q. 230 at 241.
[2] Estates Act, s. 50(1): An executor or an administrator shall not be required by any court to render an account of the property of the deceased, otherwise than by an inventory thereof, unless at the instance or on behalf of some person interested in such property or of a creditor of the deceased, nor is an executor or administrator otherwise compellable to account before any judge.
