Court File and Parties

COURT FILE NO.: CV-17-3356-00ES DATE: 2018 12 21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRIAN BLANKS, Plaintiff W. Jackson for the Plaintiff

- and -

CAROL ELIZABETH ROBERTS, Defendant Carol Roberts, Self-Represented – Moving Party

HEARD: October 30 and 31, 2018

REASONS FOR DECISION

LEMAY J.

[1] In 2011, Terrence Blanks passed away. He left a will, and the primary beneficiaries were his daughter, Carol Roberts, and his son, Brian Blanks. They were also named as the estate trustees. The estate consisted of a house, a Rolex watch, a ring, and some other minor assets. The late Mr. Blanks’ other assets flowed to various beneficiaries without much involvement on the part of the trustees or the estate.

[2] The bequests were also simple. The late Mr. Blanks (“the deceased”) left $30,000 to each of his two grandchildren, Amber Roberts and Kevin Blanks. The residue of his estate was to be split equally between his two children. The house was sold in May of 2016, and the funds from the sale of the house were paid into the trust account of Mr. Jerald MacKenzie, a lawyer.

[3] Seven years after the deceased passed away, both parties are applying for directions to resolve this matter. They cannot agree on what to do with the proceeds of the house, whether an investigation should be ordered into the sale of the house, whether the ring and the Rolex should be sold or kept or how the estate should be managed. Ms. Roberts seeks the removal of Mr. Blanks as an estate trustee. Mr. Blanks seeks to have a court-appointed trustee or monitor manage this case if necessary.

[4] This relatively simple estate file has become very complicated. As a result, I obtained the consent of Daley R.S.J. to have myself appointed case management judge under Rule 37.15. Further, with no objection from the parties, I determined that I would hear any and all motions for directions in this case, as well as the passing of accounts. Any trials of issues that I may be required to order will be conducted by other judges.

Background and Issues Raised

[5] In his notice of motion, Mr. Blanks seeks directions on whether the Rolex watch and ring should be appraised and sold. This matter originally came before Shaw J. on September 22, 2017. In her endorsement, Shaw J. noted that Ms. Roberts had filed a lengthy response to Mr. Blanks’ motion, seeking various forms of relief as well as disclosing settlement discussions. Shaw J. expunged the settlement discussions from Ms. Roberts’ Affidavit, and directed that Ms. Roberts bring her own motion as a long motion. Both motions were to be heard together for three hours.

[6] This long motion came before Bloom J. on May 9, 2018. Bloom J. reviewed the notice of motion filed by Ms. Roberts, noted that it listed more than 15 separate claims for relief, and directed the parties to book four days for the hearing of the motion. Bloom J. also imposed a timetable on the parties for the filing of additional materials and the conducting of cross-examinations. The matter was set for four days the week of October 29, 2018.

[7] Ms. Roberts’ notice of motion lists 19 different items on which she is looking to the court for directions. In addition, Ms. Roberts has brought a separate motion to strike portions of Mr. Blanks’ Affidavit of April 29, 2018. In addition, Mr. Blanks’ motion regarding the disposition of the personal property remains before the court.

[8] In reviewing the various claims for relief sought by the parties, it is clear that they can be broken into categories. Based on my discussions with the parties, and review of the various notices of motion, the following general issues present themselves to be decided:

a) Should I provide directions to commence an investigation into the sale of the deceased’s house in 2016? If so, who are the appropriate parties to involve in that investigation and eventual trial? b) Are there statements made in Mr. Blanks’ Affidavit of April 29, 2018, that are privileged, irrelevant, misleading, hearsay or opinion? c) What directions, if any, should I provide with respect to the Rolex watch and ring that currently remain as estate property? d) What directions, if any, should I provide with respect to the remaining monies owed to Amber, one of the grandchildren? e) Should either of the trustees be removed as an estate trustee? f) What further steps are required to administer this estate?

[9] In discussions with the parties, it became clear that issues c) to f) could not be addressed, unless they were resolved on consent, until I heard Ms. Roberts’ motion to strike Mr. Blanks’ Affidavit. As a result, I determined that issues a) and b) would be addressed by the parties on October 30 and 31, 2018, and the remainder of the issues would be left to another day.

[10] The one exception to that is the money owing to Amber. Both Amber, who is Ms. Roberts’ daughter, and Kevin Blanks, Mr. Blanks’ son, were left $30,000 by the deceased. For reasons that do not need to be explained or decided upon at this point, Amber only received half of her inheritance, as well as the interest up to July 31, 2016, on all of her inheritance.

[11] Therefore, the parties consented to an Order that Amber is to be forthwith paid the monies owing to her, including interest from August 1, 2016. That Order is set out in my conclusions, below.

Preliminary Matter - Accommodation

[12] In a note I received from court staff on Monday, October 29, 2018, I was advised that Ms. Roberts was seeking a series of accommodations in court. Those accommodations were as follows:

The accommodation I am seeking are as follows:

1. Non-aggressive approach to communication (trigger response sensitivity).
2. Permission to record proceedings on personal recording device in order that I may replay the recording for clarification and remembering.
3. Court and parties to refrain from cross-talking or over talking and interrupting while communicating (as best as is possible).
4. Clear questions with time provided to respond without pressure.
5. Breaks as necessary in order to regroup, collect thoughts, and focus
6. Permission to bring a Mackenzie Friend ( MacKenzie v. MacKenzie ) courtroom companion to sit beside me, to take notes, pass paperwork, and provide emotional support.
7. Flexibility and extensions of time, as needed, regarding procedures.

[13] Ms. Roberts took the position that she was entitled to these accommodations. In support of her position, she provided a medical note that stated as follows:

I am a Fellow of the College of Family Physicians of Canada and a certified MD-Psychotherapist licensed to practice medicine in Ontario since 1986.

Ms. Roberts has been a patient of mine since December 6, 2012. Her symptoms related to her disability worsen when she is under stress.

Ms. Roberts requires the following accommodations to meet with her disabilities:

1. A “McKenzie” friend to help her go to court, offer emotional support, assist in note-taking and organize paperwork.
2. Extra time to process paperwork and put material together.
3. Closure of the legal matters in a proper, timely, equitable, fair and cooperative manner with appropriate financial remuneration to Ms. Roberts.

Thank you for your assistance in this matter.

[14] This medical note does not disclose anything about Ms. Roberts’ underlying medical condition, such as what her restrictions were. When I asked her about this condition at the outset of the hearing, she advised me that this information was covered by privacy law and she did not have to disclose it. I disagreed, but allowed the following accommodations:

a) In terms of non-aggressive communications, I reminded the parties that communication in the courtroom is done through me, and not directly to the other party. As a result, I was of the view that this was sufficient to address this accommodation. b) Permission to record proceedings on a personal recording device. I granted permission on the condition that the recording was not to be used for any purpose other than remembering what had happened, and that the recording must be destroyed in court at the end of the proceeding. c) With regards to cross-talking, talking over each other, clear questions, and breaks, these are matters for me to manage as the judge. As with the concern about aggressive communications, this was sufficient to address the accommodation requests. d) On the request for a Mackenzie friend, I noted that the case-law suggests that this is normally restricted to the most complex cases, but I was not going to object to it in this case.

[15] This seemed to address Ms. Roberts’ accommodations, and both sides were content. However, for clarity, I will briefly set out my reasons for disagreeing with Ms. Roberts’ position that the note was sufficient to justify an accommodation.

[16] A court, or other third party, should not lightly inquire into someone’s medical condition. However, in any proceeding before the court both sides are entitled to be treated fairly. Where a court receives a request for an accommodation that may interfere with another party’s ability to cross-examine or otherwise present their case, the court has an obligation to ensure that the accommodation is justified. The inquiry should, of course, be limited to the minimum required to satisfy the court that it should depart from its normal processes, but the inquiry must be made.

[17] In a case where an accommodation could interfere with the rights of another party or the processes of the court, the court should not merely accept the word of a medical practitioner that the court and the other parties are required to provide a particular type of accommodation without any details or any supporting information. Adopting that approach would result in the court abrogating its functions in favour of the parties’ treating medical practitioners.

[18] Instead, in a case where an accommodation could reasonably interfere with the presentation of another party’s case, a medical practitioner should provide the court with the restrictions that the litigant has, and the court should then consider those restrictions in fashioning an appropriate accommodation. This will require medical information from the medical practitioner and may, in limited circumstances, require a diagnosis. In this case, the note from Ms. Roberts’ treating medical practitioner provided legal conclusions, rather than restrictions. Legal conclusions are not the purview of treating medical practitioners.

[19] Where the court receives requests for accommodation that do not interfere with the court’s processes and/or the ability of other parties to present their case, then the court should honour those requests, unless there is good reason not to.

Issue #1 - The Investigation of the House Sale

a) Background

[20] The deceased owned a house at 7382 Redstone Road in Mississauga (“the Redstone property”). For a period of time after the deceased passed, Ms. Roberts lived in the Redstone property. It was, however, vacant at the time of the sale. Shortly before the Redstone property was sold, the estate accountant was using a value of $431,516 for accounting purposes.

[21] This property was sold over the Victoria Day long weekend in 2016. The listing price for the property was $579,900. The listing agreement was signed with Re/Max Skyway Realty. Mr. Blanks signed the agreement on May 3, 2016, and Ms. Roberts signed the agreement on May 18, 2016. The real estate agent chosen by the parties was Ms. Meera Banka.

[22] During the course of the sale process, four separate bids were made on the Redstone property, and the estate trustees ultimately accepted the highest bid.

[23] The winning bid was for $601,000, and was from the Johal family. Specifically, the offer listed the purchaser as Malwant Singh Johal, in trust. The agreement indicated that it was open for acceptance until 6:00 p.m on Friday, May 20, 2016.

[24] In the materials included with the APS, there is a registrant’s disclosure of interest form. It indicates that the real estate agent used by the Johals, a Mr. Hardeep Singh Grewal, is related to them. There is no indication that the Johals or Mr. Grewal are related to Ms. Banka.

[25] At the time that these offers were coming in, Ms. Roberts asked (at 2:21 p.m. on Friday May 20, 2016) that “an extended irrevocability date of 5 business days is included in all offers to ensure that we have time to hear back from all lawyers involved”. Ms. Banka duly checked with all of the agents who were involved in the bidding, and determined that none of them were prepared to agree to such a clause.

[26] In the afternoon of Friday, May 20, 2016, Mr. Blanks conditionally accepted the Johals’ offer, with a $35,000.00 deposit. The acceptance of the Johals’ offer was conditional upon obtaining the approval of the lawyer and second executor (Ms. Roberts) by May 24, 2018 at 6:00 pm. The Johals were also prepared to agree to these terms.

[27] At this point, Ms. Banka listed the house as sold conditional on the MLS website. No further offers were received and only one further inquiry was made.

[28] Ultimately, the offer from the Johals was completed, and both Ms. Roberts and Mr. Blanks signed off on the APS. Ms. Roberts felt pressured to sign off on it, but she had the opportunity to have the APS reviewed by a friend of hers who is a financial divorce specialist and mediator, who also appears to be qualified as a CPA and a CMA.

[29] A significant part of the reason that Ms. Roberts was feeling pressured is that she had received an e-mail from Mr. Jackson, counsel to Mr. Blanks. That e-mail stated, in part, as follows:

If you do not accept the offer recommended by Meera in access be with the agreement to defer to her professional advice, Brian will be moving for judicial oversight of this sale, thus removing any necessity for your signature at all. If the estate loses a $600,000 sale price due to your abuse of power as trustee, as beneficiary, Brian reserves the right to hold you liable for all such losses as may result.

[30] The APS closed on June 30, 2018, and the estate received the proceeds. They are being held in Mr. MacKenzie’s trust account. No issues were raised by any party regarding the sale of the house until Mr. Blanks brought a motion to compel the sale of the Rolex watch and the ring in the summer of 2017, over a year later. It was only when this motion was brought that Ms. Roberts began to raise the issues that are the subject of this motion.

b) The Claim for an Investigation

[31] Ms. Roberts argues, in essence, that the sale of the house was improper and fraudulent. Ultimately, she is seeking to have the sale of the house unwound. Based on these arguments, Ms. Roberts acknowledged that no Orders could be made relating to investigating the Johals’ involvement in this case without providing them an opportunity to participate in the investigation and any court proceedings flowing from that investigation.

[32] I am also of the view that, if an investigation was ordered, other parties would have to be involved in addition to the Johals. At a minimum, the real estate agent who acted for the estate on the house closing would have a right to be heard, as the investigation would cover Ms. Roberts’ allegations against her.

[33] Ms. Roberts also argued that some of the proceeds from the sale of the Redstone property might have been used to fund part of the development of a property in Essa Township in Simcoe County. Thus, the investigation might also result in the developer of the property becoming involved in the litigation. Ms. Roberts points to a series of transactions, spanning a number of years, to support her allegations relating to the development.

[34] Ms. Roberts argues that I should order this investigation and points to three categories of arguments to support her position, as follows:

a) The alleged undue pressure put on Ms. Roberts to complete the sale of the Redstone property, and the manner in which the sale itself was conducted. b) A series of coincidences and other events that, when taken together, allegedly suggest that there might have been an attempted fraud in this case. These include an allegation that Mr. Jerald MacKenzie may have permitted the investment of the funds held in trust for the sale of the Redstone property in a property development, as well as alleged connections between a series of transactions relating to a number of different properties. c) The transaction, when points a) and b) are considered together, demonstrates the presence of badges of fraud because it is an improvident transaction.

[35] Ms. Roberts stated that her argument was a nuanced argument that required consideration of “the minutiae”. In order to ensure that I did not miss any of these nuances, I obtained and considered the transcript from the hearing on October 30, 2018. In outlining her argument at the commencement of the hearing, Ms. Roberts stated:

CAROL ROBERTS: The property, the offer of purchase and sale, the actual document itself, indicates that the property was purchased in trust. And when a property is purchased in trust the purchaser acts as a trustee. The problem in Canada is it doesn’t show on the land registry if a property is purchased by a trustee for the benefit and ownership of someone else. And so once that property is purchased, if there was a nominee, a nominated purchaser to purchase the home in trust for a beneficiary, after it is registered on title they have a private trust agreement and the beneficiary requests the trustee to resign and the ownership is then taken over by the beneficiary. The problem is that does not appear on the land registry here in Canada at this time. There is work being done to try and change that because it is a significant problem for improper sale of real estate in Canada. So this is one of the concerns that I have. I mean we can certainly look at the land registry, but it’s not necessarily going to show the whole story. The document that I rely on that is the actual offer of purchase and sale which is clearly marked “in trust”.

[36] At a minimum, Ms. Roberts is asking that I direct a “formal investigation of all transactions and parties related to and stemming from the sale of the House”. In addition, she is seeking to have the transaction unwound, and the Redstone property conveyed back to the estate.

[37] Given that none of the other parties involved in the sale of the house have been given notice of this request, the first issue that must be determined is whether there is even enough evidence to raise any questions about whether the sale of the Redstone property was improper and should be investigated further.

[38] With these general comments in mind, I will address each of the specific issues that I have identified above. I will then address the question of badges of fraud at the end of my analysis.

c) Allegations Relating to the Sale of the Property

[39] Ms. Roberts advanced a number of arguments to support her contention that the transaction leading to the sale of the house was improper. These arguments can be broken into three categories: the pressure put on Ms. Roberts, the conduct of the real estate agents, and other potential offers. I will deal with each area in turn.

Pressure on Ms. Roberts

[40] In terms of the pressure put on Ms. Roberts, she noted the following points:

a) That the parties were not all meeting at the house to negotiate the sale, which was in her mind unusual. b) The real estate agent was not prepared to continue accepting offers over the weekend, and had marked the property sold conditional on the Friday before the long weekend. c) There was not enough time to consult the lawyers over all of the legal issues that existed with the sale of the house. As noted above, she was seeking a clause that offers be irrevocable for five (5) business days.

[41] Ms. Roberts also argued that she did not agree to defer the decision to the real estate agent. As she stated in argument:

… And he’s relying on the fact that – he’s, he’s saying that because I did not expressly refuse to rely on Meera’s expert opinion and defer to her to make the decisions on the sale of the real property, that in fact my brother and I had agreed to defer our entire executor duties to a commissioned real estate agent who was making a profit off the sale and who shared an office with the buying agent.

[42] Indeed, the advice that Ms. Banka provided to Ms. Roberts suggests that the offer was reasonable. In an email dated May 20, 2016, Ms. Banka stated:

I met with Brian at the property this afternoon and he has chosen to accept with minor changes on the offer from Malwant Singh Johal in Trust for $601,500 with $35,000 deposit closing date June 30 th , 2016. We have made this offer conditional upon obtaining Lawyer’s approval and second executors by 6pm May 24 th , 2016.

In my opinion this is our only hope to salvage the offer and not lose the deal. This offer is way over asking price and should be taken very seriously as there is always a possibility we may never see this again.

[43] In any event, regardless of whether the parties initially agreed to defer the decisions about whether to accept offers to Ms. Banka, it is clear that Ms. Roberts had the opportunity to consult with her own advisors, and only signed the offer after doing so. This email also provides a clear explanation as to why Ms. Banka was not taking further offers over the long weekend. The parties had already conditionally accepted an offer.

[44] Finally, there is Mr. Jackson’s email set out at paragraph 29 of these reasons. Ms. Roberts points to that email as demonstrating some of the pressure that was put on her. I disagree. The email sets out a perfectly reasonable warning to Ms. Roberts that, if she causes a very good offer to disappear and the Redstone property ends up selling for a lower amount, Mr. Blanks will look to her for indemnification. This email also demonstrates the tension that existed between the parties, which explains why the parties were not meeting together at the house to review the offers.

[45] As a result, I see no improper pressure that was put on Ms. Roberts over the sale of the house.

Conduct of the Real Estate Agents

[46] As noted above, Ms. Roberts expressed concern that Ms. Banka did not accept offers over the long weekend. I reject her concerns. Ms. Banka’s email makes it clear that there were real risks in not voluntarily accepting the Johal’s offer. In addition, it could have been bad faith to continue to solicit offers when one had already been conditionally accepted.

[47] Ms. Roberts went on to argue that Ms. Banka was in a conflict of interest as she was in the same office as the purchasing agent. Again, I do not see this as an actual conflict, as there is no evidence (or even suggestion) that the real estate agent acting for the estate conspired with the purchaser’s agent. In any event, however, Ms. Banka’s interest in this transaction was the same as the estate’s interest – ensuring that the house sold for the highest possible value.

[48] Finally, Ms. Roberts argued that the fact that the purchasers were related to their real estate agent might be a conflict of interest. I reject this argument for two reasons. First, there is no evidence before the court that this potential conflict of interest could have affected the transaction. Second, this was a fact that should have been known to Ms. Roberts at the time that the house was sold, as the disclosure was part of the offer that she had four days to review. There is no good explanation as to why Ms. Roberts took more than a year to raise this issue.

Another Offer Might Have Been Coming

[49] Ms. Roberts also argued that there was another real estate agent, a J. Mehta who had told Ms. Roberts that there might have been another offer coming in. During the hearing, Ms. Roberts acknowledged that there was no evidence in the record to support this allegation, and that there was also no evidence that Mr. Blanks knew about this possible offer. I also see no evidence that Ms. Banka knew about this other potential offer.

[50] I reject this potential other offer as being even sufficient to permit the estate to investigate it further. First, there are no facts available to the court to establish that anyone involved in the transaction did anything wrong, merely possibilities and innuendo. Second, if Ms. Roberts wished to raise this as an issue, then she had an obligation to provide the court with additional evidence, particularly given that it is more than two years after the sale. Third, the house was sold in a bidding war. The fact that someone else might have wanted to bid does not mean that the bidding process should have been halted to give them an opportunity to do so. Bids on properties come with deadlines, and there is nothing wrong with determining that the risk of losing a bid significantly above the listing price was not worth the potential reward of waiting for another bid.

Conclusion on the Transactional Issues

[51] In this case, there is no evidence that the sale transaction was, in any way, improper. I have reached that conclusion for a number of reasons:

a) Ms. Roberts signed the Agreement of Purchase and Sale. b) The property was sold to the highest of four separate bidders. c) There is no evidence of any relationship between the Johals, who purchased the Redstone property, and either Mr. Blanks or the real estate agent, Ms. Banka. d) The value of the Redstone property used by the estate’s accountant was $431,516, and the property sold for $601,000, indicating a very significant premium. e) The sale of the Redstone property was marked conditional on Friday, May 20, 2016. One of the conditions was that Ms. Roberts did not have to approve the transaction until 6:00 p.m. on May 24, 2016. This condition provided her with time to obtain the advice of a lawyer on any issues or concerns she may have had. f) None of these issues were raised by Ms. Roberts for more than a year after the transaction closed, and she offered no good explanation for the delay other than her position that there might be some vast unknown web of related, fraudulent transactions that underpin this case. I will address that argument in the next section.

[52] I acknowledge that Ms. Roberts felt that she was forced to sign the paperwork for the sale of the Redstone property in May of 2016. However, I also note that real estate transactions are often done very quickly. Feeling some pressure in those situations is not abnormal. Any concerns that the court might have about Ms. Roberts being pressured into an improvident agreement to sell the Redstone property are obviated by the fact that there were four separate bidders, and the parties accepted the highest offer.

d) The Coincidences Suggesting Fraud

[53] A key allegation Ms. Roberts makes is that the house was obtained for a third party. In her view this is “almost a bigger issue than whether it sold for fair market value or not.” In essence, her argument was that the sale of the home may have been coordinated for someone tied to the estate. In that regard, she points to her nephew, Kevin, and the fact that he was originally going to attend Humber College, which is near where the Redstone property is located. Ultimately, Kevin did not attend Humber.

[54] In any event, Ms. Roberts’ allegation is that the Redstone property was either obtained for a third party, or the proceeds were used to finance other transactions. Her arguments can be divided into four categories. These are: the joint bank account used for the estate had some improper withdrawals; the Johals also bank with CIBC; there are irregularities in Mr. MacKenzie’s trust account; and there are a series of transactions that may be interconnected.

[55] I will deal with each argument in turn. None of them have any merit.

The Joint Bank Account

[56] The parties used a joint account with Ms. Roberts, Mr. Brian Blanks and the deceased as signatories at a CIBC branch on Airport Road in Mississauga (“the Malton Branch”). Starting in April of 2017, for a period of a few months, some withdrawals were improperly posted to this account.

[57] Ms. Roberts argues that these improper withdrawals are suggestive of fraud in this case. Ms. Roberts also links this problem with the CIBC account that the parties were using to the fact that a further mortgage was registered on the property by the Johals in April of 2017.

[58] There are a number of problems with Ms. Roberts’ claim on this point. First, Ms. Roberts acknowledges that the estate is no longer out of money as a result of these posting errors. It is impossible to allege a civil fraud when there has been no actual loss. On this point, see Bruno Appliance and Furniture Inc. v. Hyrniak, [2014] 1 S.C.R 126, 2014 SCC 8, at para. 21.

[59] Second, the amounts are relatively small, being less than $3,000 in total. This is not a significant amount given the size of the estate.

[60] Third, and most importantly, these transactions were all reversed, and were explained by CIBC as an error. There is no factual basis to conclude that these withdrawals were anything other than an error.

Where the Johals Bank – Is That Relevant?

[61] Ms. Roberts also suggests that there is something to be gleaned from the fact that the Johals’ and the estate’s accounts are both at CIBC. However, she also acknowledges in her submissions that “there’s only five national banks.” I see no basis to accept that there might be fraud because the Johals have used the same major national bank as the estate.

Irregularities in the Trust Account

[62] There is clearly a dispute over the role that Mr. Jerald MacKenzie played in this litigation. There was some suggestion that Mr. MacKenzie was retained as Ms. Roberts’ lawyer at a point in this litigation. She denies this assertion, and claims that he was only ever the estate’s lawyer.

[63] Ms. Roberts also alleges that Mr. MacKenzie and Mr. Jackson were communicating with each other in the fall of 2017, without her knowledge. I see no evidence to support that allegation in the materials before me.

[64] Further, Ms. Roberts alleges that Mr. MacKenzie improperly took money out of the trust account to pay an invoice. In terms of this allegation, the trust ledger discloses at most a dispute over approximately $5000. I do not intend to make any findings about this dispute at this stage, as it appears to be an issue that may have to be dealt with at some point later in the litigation. However, I do note that even if this money was improperly taken out of the trust account, there is no evidentiary basis to tie it back to the sale of the Redstone property.

[65] Finally, I note that there is no evidence in any of the materials before me that the money being held in trust was ever used to finance any investments on behalf of any party other than the estate.

[66] As a result, there is no merit to this allegation either.

The “Web” of Transactions

[67] Finally, there are a series of transactions relating to different properties that Ms. Roberts says may all be interconnected. The allegedly connected properties are as follows:

a) 136 Gray Avenue in Alliston, a property owned by Sandra Lippett, allegedly the girlfriend of Mr. Blanks. b) 1053 Villa Drive in Midland, a property owned by Mr. Brian Blanks at some point. c) The Brookvalley Angus development in Essa Township, in the County of Simcoe. d) 77 Riverwalk Drive, Midland, Ontario, a property owned by Mr. Brian Blanks at some point. e) 90 Wagner, a part of the Brookvalley development that was purchased by Ms. Sandra Lippett when her property at 136 Gray Avenue was sold. f) 7362 Redstone Road, a neighboring property, was purchased by a Hardeep Grewal. The transaction closed on November 21, 2014, and the purchase price was $399,000.

[68] Ms. Roberts points to a number of issues with each of these properties and suggests that it is possible that the various transactions are all related and all part of a fraud. I note that Ms. Roberts’ argument has evolved since she started to raise these issues in the summer of 2017.

[69] I have considered all of the points that she has made, particularly in her Affidavit entitled “Timeline of Real Estate Transactions”, as well as the points that she has made in argument. There is no merit to any of them. In the paragraphs that follow, I will address the most significant of the issues that Ms. Roberts raises.

[70] I start with the alleged connection between the two properties on Redstone Road. Having reviewed the parcel registers for both properties, I fail to see any possible relationship between the two properties and reject Ms. Roberts’ arguments on this point. I also note that there is no proof in the materials that the Hardeep Grewal who purchased the property is the same person as the real estate agent who acted for the purchasers on the sale of the deceased’s house. However, even if Ms. Roberts was able to prove this assertion as a fact, there is no connection between the two transactions.

[71] Then, there is the fact that the Johals put a $480,000 mortgage on the Redstone property when they purchased it. Ms. Roberts points out that the mortgage on Mr. Blank’s house in Midland, registered in February of 2013, was for exactly half of this amount. According to Ms. Roberts, this is something that merits investigation, as it suggests that there might be a relationship between the two mortgages.

[72] There is no merit to this suggestion. First, it would strain credulity to believe that Mr. Blanks would have arranged a mortgage on his house more than three years before the transaction closed for the purposes of engaging in fraudulent conduct when the Redstone property was ultimately sold. Second, there is no evidentiary link between the two mortgages. All I have is the fact that one mortgage is double the other mortgage. This is not a basis for inquiring into the house transaction.

[73] Then, there is the Brookvalley development in Essa, which is in Simcoe County, some distance away from the Redstone property. This land development was financed by a $17.5 million dollar loan from CIBC. Ms. Roberts argues, in essence, that some (or all) of the money that was generated from the sale of the Redstone property was used to purchase part of this investment.

[74] Ms. Roberts advances four grounds for believing there is some relationship between the Brookvalley development and the Redstone property, as follows:

a) The values of the various other transactions equal ten percent of the value of the mortgage on the Brookvalley development. b) May 20, 2016, a date allegedly referenced in the documentation for the Brookvalley development is the same day that Ms. Roberts was threatened with a lawsuit by her brother if she did not close the sale of the Redstone property. c) Mr. MacKenzie might have removed money from the funds held in trust to purchase an interest in the Brookvalley development. I have already explained why I do not view any issues relating to the trust account as being relevant to the sale of the Redstone property. The same reasoning applies here and I will not address this argument any further. d) Finally, there is the fact that Sandra Lippett bought a house in the Brookvalley development after she sold her property in Alliston.

[75] None of these allegations have any merit. I start with the fact that the transactions that Ms. Roberts has pointed to could amount to 10% of the value of the mortgage on the Brookvalley development. There are numerous problems with this assertion. Listing a couple of the most significant of them will show why there is no merit to this argument:

a) There are a significant number of different people involved in all of the other transactions that Ms. Roberts point to. They would all have to be cooperating in this transaction, which is unlikely as there is little relationship between them. b) The Brookvalley agreement confirms that CIBC is the only financial institution that holds a mortgage on the Brookvalley development.

[76] Then, there is the May 20, 2016 date that Ms. Roberts points to as coincidentally being both the date that she was threatened, and a date where significant things happened with the Brookvalley development. While I could not find reference to that date in the Brookvalley documentation (which was signed in September), the coincidence that something happens on the same date is not, in and of itself, sufficient to establish any kind of causal link.

[77] Finally, in terms of Ms. Lippett’s house purchase, this is also irrelevant. On the evidence that I have, there is simply no connection whatsoever between Ms. Lippett’s properties and the sale of the Redstone property or the money being held in trust.

Conclusion on the Coincidences

[78] These are all of the major coincidences that Ms. Roberts has raised. There is no merit to Ms. Roberts’ claim that these coincidences when considered individually are even worth investigating, much less that they might reveal some fraud.

[79] In addition, Ms. Roberts outlined a number of other minor coincidences, such as the fact that the property development also used CIBC for financing and the fact that a mortgage on Mr. Blanks’ property was registered at Meridian Bank, where his ex-wife worked. None of these coincidences, taken individually, justify any further investigation of the home sale. This brings me to the question of whether, when taken together, these coincidences amount to grounds to investigate the transaction further.

e) Improvident Sale and Badges of Fraud

[80] Ms. Roberts argues that, when all of these coincidences are taken together, I should reach two conclusions. First, I should conclude that the property was sold improvidently. Second, I should conclude that “badges of fraud” are present.

[81] I have already dealt with the improvident sale argument in the section addressing Ms. Roberts’ concern about the house transaction itself. However, to briefly summarize my conclusions, there is no evidence on which I could conclude that the sale was improvident. Indeed, the evidence leads to the opposite conclusion. A bidding war is usually an indication that the parties have achieved the best price possible for the property. Further, there is no evidence of any link between Mr. Blanks and the Johals. Finally, there is no evidence to demonstrate that the estate could have obtained any greater value for the house than they actually obtained. As a result, there is no basis to claim that the sale of this property was improvident.

[82] Then, there are the badges of fraud. Ms. Roberts went to FINTRAC, the Financial Transactions and Reports Analysis Center, and researched how people inappropriately purchase property, obtain funds and move money around. Ms. Roberts described her position in the following words:

CAROL ROBERTS: It’s, it’s, it’s – this is the thing what I’m looking with when I’m looking up with FINTRAC and why these things are really difficult sometimes to uncover is because they’re all done under the radar, small, multiple, complex series of events. And I’m suggesting here when I look at this and I’m going what the heck is going on, we have a lot of small, complex sequence of events that all seem to join …

[83] In her factum, Ms. Roberts references Twyne’s Case, (1601) 76 E.R. 809, as well as Indcondo v. Sloan, 2014 ONSC 4018, at para. 52, where Penny J. summarized some of the badges of fraud:

The badges of fraud derive from Twyne’s Case (1601) 76 E.R. 809. As interpreted by modern courts, the badges of fraud include:

(d) the donor continued in possession and continued to use the property as his own; (e) the transaction was secret; (f) the transfer was made in the face of threatened legal proceedings; (g) the transfer documents contained false statements as to consideration; (h) the consideration is grossly inadequate; (i) there is unusual haste in making the transfer; (j) some benefit is retained under the settlement by the settlor; (k) embarking on a hazardous venture; and (l) a close relationship exists between parties to the conveyance.

[84] Ms. Roberts relies on these points, as well as the evidence I have cited above, to establish that the sale of the house exhibits badges of fraud. I reject this submission for two reasons. First, even when all of the coincidences that Ms. Roberts pointed to are taken together, there is no connection between them. The only commonality that I can see is that the coincidences happen over the course of a four-year period, and all of the transactions are in Ontario. In the absence of any other evidence, there is no reason to explore these coincidences.

[85] Second, virtually none of the badges of fraud are even present. The only two from the list above that could possibly apply are the claim that the transaction was a secret, and that the transfer was made in the face of threatened legal proceedings.

[86] On the first issue, Ms. Roberts points to the fact that the house was purchased in trust, and argues that we need to know who the real owners of the house are. I disagree. Absent any fraud, improper dealing or self-dealing, I see no basis why we would need to know the actual owner of the house.

[87] I take that view because the transaction is an arms-length transaction, and the goal of the trustees is to maximize the value of the estate property. Absent any concerns of illegality, there is no reason to inquire behind the transaction. The mere existence of a purchaser “in trust” does not create a suspicion of illegality where none already exists.

[88] Indeed, s. 62(2) of the Land Titles Act, R.S.O. 1990, c. L.5 specifically states:

Describing the owner of freehold or leasehold land or of a charge as a trustee, whether the beneficiary or object of the trust is or is not mentioned, shall be deemed not to be a notice of a trust within the meaning of this section, nor shall such description impose upon any person dealing with the owner the duty of making any inquiry as to the power of the owner in respect of the land or charge or the money secured by the charge, or otherwise, but, subject to the registration of any caution or inhibition, the owner may deal with the land or charge as if such description had not been inserted.

[89] From this section, it is clear that the fact that the owner of a property is holding it in trust does not impose any duties on people dealing with the owner of the property. Similarly, in this case, the fact that the Johals purchased the property “in trust” does not impose any obligations on the estate trustees (or the court) to inquire into the beneficial owner of the property’s identity.

[90] Then, there is the fact that legal proceedings were threatened. The only threat I see is Mr. Jackson’s email, at paragraph 29. I have already explained why this “threat” was a reasonable legal position to take. Taking a reasonable legal position does not usually amount to a “badge of fraud”. Certainly in this case, there is no evidence that this “threat” is a badge of fraud.

c) Conclusion

[91] Based on the foregoing analysis, I have concluded that there should not be any further investigation into the sale of the Redstone property for the specific reasons set out above. Those reasons can be summarized in four main points.

[92] First, and most importantly, I see no real evidence that the house was improperly sold, fraudulently sold or improvidently sold.

[93] Second, there is no evidence that the proceeds from the sale of the house have been improperly used. Ms. Roberts argued that the proceeds of sale may have been used to buy a portion of a development in Simcoe County but there is no evidence to support this bald assertion.

[94] Third, the connections that Ms. Roberts seeks to make between various parties in order to establish fraud would require speculation on the part of the court. The court should not permit estate trustees to engage in this type of speculation without some factual foundation. The evidence presented by Ms. Roberts does not provide any factual foundation for her claims of fraud or potential fraud.

[95] Finally, the costs associated with the investigation that Ms. Roberts seeks to conduct would be prohibitive, and could put the estate at risk of being completely depleted in litigation. This depletion could arise in two ways, as follows:

a) The cost of conducting a forensic investigation of the scope sought by Ms. Roberts could run into the tens, or even the hundreds of thousands of dollars. The estate is, at this stage, worth less than $700,000.00. b) Pursuing these allegations would either involve the Johals, the real estate agents and potentially a developer in an investigation where they would have a reasonable claim for costs, or in litigation where they would also have a reasonable claim for costs. Indeed, if allegations of fraud are pursued against any of the third parties, then costs can (in some circumstances) be awarded on a substantial indemnity basis. On this point, see Hamilton v. Open Window Bakery, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26.

[96] For the foregoing reasons, the estate trustees are neither required nor permitted to perform any further investigation into the sale of the Redstone property.

Issue #2 - Striking Mr. Blanks’ Affidavit

a) The Non-Settlement Privilege Issues

[97] In her Notice of Motion, Ms. Roberts seeks to strike various paragraphs of Mr. Blanks’ April 29, 2018, Affidavit on the basis that these paragraphs disclose privileged settlement discussions and/or that they are irrelevant, misleading, hearsay or provide opinion evidence.

[98] In the course of hearing this motion, I advised the parties that I would not be striking any of the pleadings on the basis that they were irrelevant, misleading, hearsay evidence or providing opinion evidence. I explained, in general terms, my reasons for this ruling. I will now set out more detailed reasons for that ruling.

[99] I start with the hearsay claim. Rule 39.01(4) states that an affidavit for use on a motion may contain statements of “information and belief”. These types of statements are hearsay and are permissible on motions. The only question is what weight to give those statements. As a result, I reject Ms. Roberts’ request that I strike this information. Any concerns about hearsay in Mr. Blanks’ Affidavit go to weight, and not admissibility.

[100] Then, there are the claims that various paragraphs are irrelevant, misleading or opinion evidence. I declined to address these objections for two main reasons. First, answering the question of whether these paragraphs are irrelevant, misleading or opinion evidence would require me to consider the merits of all of the issues on this motion for directions.

[101] Second, in essence what Ms. Roberts is asking me to do is reject the evidence of Mr. Blanks. It is not appropriate to strike an affidavit simply because the other side says that it is misleading and takes a different view of the facts. This is a question that should be determined on the merits, after considering the evidence of both sides.

[102] As a result, the only claims in relation to the affidavit that I will consider relate to the question of settlement privilege. I now turn to that issue.

b) Settlement Privilege - The Applicable Law

[103] In Sable Offshore Energy Inc. v. Ameron International, 2013 SCC 37, [2013] 2 S.C.R. 623, Abella J., speaking for a unanimous Supreme Court of Canada, stated the following at paras. 13-15:

Settlement negotiations have long been protected by the common law rule that “without prejudice” communications made in the course of such negotiations are inadmissible (see David Vaver, “‘Without Prejudice’ Communications — Their Admissibility and Effect” (1974), 9 U.B.C . L. Rev. 85, at p. 88). The settlement privilege created by the “without prejudice” rule was based on the understanding that parties will be more likely to settle if they have confidence from the outset that their negotiations will not be disclosed. As Oliver L.J. of the English Court of Appeal explained in Cutts v. Head, [1984] 1 All E.R. 597, at p. 605:

. . . parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations . . . may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v. Drayton Paper Works Ltd (1927) 44 RPC 151 at 157, be encouraged freely and frankly to put their cards on the table.

What is said during negotiations, in other words, will be more open, and therefore more fruitful, if the parties know that it cannot be subsequently disclosed.

Rush & Tompkins confirmed that settlement privilege extends beyond documents and communications expressly designated to be “without prejudice”. In that case, a contractor settled its action against one defendant, the Greater London Council (the GLC), while maintaining it against the other defendant, the Carey contractors. The House of Lords considered whether communications made in the process of negotiating the settlement with the GLC should be admissible in the ongoing litigation with the Carey contractors. Lord Griffiths reached two conclusions of significance for this case. First, although the privilege is often referred to as the rule about “without prejudice” communications, those precise words are not required to invoke the privilege. What matters instead is the intent of the parties to settle the action (p. 739). Any negotiations undertaken with this purpose are inadmissible.

Lord Griffiths’ second relevant conclusion was that although most cases considering the “without prejudice” rule have dealt with the admissibility of communications once negotiations have failed, the rationale of promoting settlement is no less applicable if an agreement is actually reached. Lord Griffiths explained that a plaintiff in Rush & Tompkins’ situation would be discouraged from settling with one defendant if any admissions it made during the course of its negotiations were admissible in its claim against the other:

In such circumstances it would, I think, place a serious fetter on negotiations . . . if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. [p. 744]

[104] It is clear that settlement privilege is a vital part of the litigation system. However, it is also clear that it protects the parties’ settlement negotiations. Settlement privilege does not protect the underlying facts in those settlement negotiations, and it does not create privilege over facts that are already known to the parties before they enter into settlement negotiations.

[105] Indeed, the courts have recognized that, generally, three conditions have to be met before settlement privilege can be invoked:

a) A litigious dispute must be in existence or within contemplation; b) The communication must be made with the express or implied intention that it would not be disclosed to the court in the event that negotiations were not successful; and c) The purpose of the communication must be to attempt to effect a settlement.

[106] These well accepted principles, which are set out in Sopinka, Lederman and Bryant’s The Law of Evidence in Canada 2nd ed. (Toronto: Butterworths, 1999), and adopted by the Court of Appeal for Ontario in Losenno v. Ontario Human Rights Commission, (2005) 78 O.R. (3d) 161, at para. 21. I will apply these principles to the claims that Ms. Roberts has advanced.

c) Analyzing the Privilege Claims

[107] There are a number of privilege claims. Before addressing them on a paragraph by paragraph basis, it is worth considering two related issues that arise in a number of the claims. They are Mr. Blanks’ assertions about a $40,000 debt that he claims that Ms. Roberts owes to the estate, and the claim for occupation rent for the time period that Ms. Roberts lived in the house.

[108] In both of these cases, Ms. Roberts argues that, since the issues were discussed in settlement conversations, that they cannot now be raised before the court. In particular, during our discussion of the occupation rent issue, I asked Ms. Roberts to confirm that her position was “the fact that there was discussion in settlement negotiations of occupation rent now precludes Mr. Blanks from advancing any claim for occupation rent in these proceedings.” She acknowledged that this was her position.

[109] A similar argument was advanced with respect to the $40,000 that Mr. Blanks claims was a loan from the deceased to Ms. Roberts to assist with her divorce. Ms. Roberts claims that this amount is a gift. I make no finding on whether it was a gift or a loan, as that may be a matter that requires directions later in this proceeding.

[110] Ms. Roberts’ argument on privilege on this point is without merit and I reject it. The mere fact that the parties discuss an issue in settlement discussions does not result in the existence of that issue being covered by settlement privilege. If the parties try to resolve an issue, but cannot do so, the issue remains in dispute between them. The court retains the ability to adjudicate that issue, and the court is required to receive the evidence underlying the dispute to complete its adjudication.

[111] The position that Ms. Roberts is taking on these issues is inconsistent with the purpose of settlement privilege. A party who is told that they will not be allowed to litigate their claim if they have any settlement discussions about it will never have those discussions. If I adopted Ms. Roberts’ interpretation of settlement privilege on these points, I would be discouraging settlement discussions.

[112] Ms. Roberts’ position on these points is also inconsistent with what is required for settlement privilege. It is the communications made in settlements that are protected, and not the issues that the parties are litigating.

[113] This brings me to the specific claims of privilege that Ms. Roberts raises. In response to these specific points, Mr. Jackson concedes that part of paragraph 16 of Mr. Blanks’ affidavit is problematic. However, on the remainder of the claims, he argues that Ms. Roberts has put Mr. Blanks’ conduct in issue and, as a result, Mr. Blanks is entitled to rely on all of his conduct, including settlement discussions, in advancing his position on this motion for directions.

[114] In terms of each claim for settlement privilege, I note as follows, with reference to the paragraph numbers in Mr. Blanks’ affidavit:

a) Paragraph 12 - Ms. Roberts claims that the phrase “which issues by and large have not been presented by Carol Roberts at all” is covered by settlement privilege. I disagree. When the paragraph is read as a whole, it is clear that Mr. Blanks is simply stating that Ms. Roberts has raised other issues. I cannot see how that statement discloses settlement discussions. b) Paragraph 15 - This paragraph deals with Mr. Blanks’ claim for occupation rent and the claim that the $40,000 was a loan to Ms. Roberts. For the reasons set out above, this paragraph is not covered by settlement privilege. c) Paragraph 16 - The statement regarding the debt being acknowledged is, as Mr. Jackson acknowledges, problematic. I view it as being covered by settlement privilege and I am ordering it struck from the affidavit. d) Paragraph 24 - Ms. Roberts claims that the entire paragraph should be struck as being settlement privileged. I disagree. One of the key issues that I will have to decide in this case is whether one (or both) of the trustees should be removed as a trustee. As a result, this evidence is relevant. Further, the discussions between two trustees cannot be privileged when done during the management of the estate. Finally, there was no litigation yet contemplated at the time these discussions took place. e) Paragraph 25 - The same reasoning as set out for paragraph 24 means that this paragraph is not covered by settlement privilege either. The mere fact that it references discussions between Mr. Blanks and Ms. Roberts with a view to resolving issues relating to the sale of the house does not make it settlement privilege. The discussions, as I see them, are an attempt by the parties in their role as trustees to address the sale of the Redstone property. f) Paragraph 33 - Ms. Roberts claims that the entire paragraph should be struck as being settlement privileged except for the last sixteen words. I disagree for two reasons. First, the statements made by Mr. Blanks raise issues about whether Ms. Roberts could act as sole estate trustee because of conflicts that the occupation rent and loan claims raise. Second, in any event, the court is going to have to wrestle with the question of whether either (or both) of the parties should be removed as estate trustees. Mr. Blanks is certainly within his rights to make arguments, and advance these points as part of his argument. g) Paragraph 37 - Ms. Roberts argues that the phrase “but for Carol Roberts’ desire to purchase the estate assets personally, in particular the property” is covered by settlement privilege. This claim of privilege is problematic for the same reasons I have set out under paragraphs 24 and 25. In essence, the only way that Ms. Roberts could have expressed a desire to purchase the estate assets personally is if she communicated that desire to Mr. Blanks in her role as an estate trustee, and they then jointly discussed it as trustees. As such, there can be no settlement privilege attached to the discussions. h) Paragraph 52 - Ms. Roberts seeks to strike two parts of this paragraph. First, there is the statement that “In fact, in March 2016 just before negotiations between myself and Carol Roberts broke down…” The mere fact that settlement negotiations took place is not privileged. Then, there is the phrase “in respect of negotiations to have Carol Roberts purchase the Property from the Estate directly, the value of $431,516 was being relied upon between the parties”. Again, this issue raises the question of what roles Ms. Roberts and Mr. Blanks were engaged in at the time that they had these discussions. In my view, they were working, at least in part, as co-trustees to resolve these issues. As a result, settlement privilege does not attach. i) Paragraph 56 - This paragraph is also not privileged for the same reasons given regarding paragraph 52. j) Paragraph 72 - Ms. Roberts claims that the phrase “and her express desire to purchase the property personally” is privileged. This claim is dismissed for the reasons given for dismissing Ms. Roberts claim regarding paragraph 37. k) Paragraph 80 - Ms. Roberts argues that the entire paragraph is covered by settlement privilege. I disagree, as it deals primarily with the issue of occupation rent and the $40,000 that Ms. Roberts received from the deceased. The phrase “as far as settlement discussions are concerned” appears to me to identify settlement discussions. However, as I have indicated elsewhere, the mere existence of settlement discussions is not caught by settlement privilege, especially given that no litigation was yet contemplated at that time. l) Paragraph 81 - Ms. Roberts’ claim of settlement privilege on this paragraph rests on the arguments about the occupation rent and the $40,000. I have rejected those arguments, and this claim of privilege fails for the same reasons. m) Paragraph 82 - Ms. Roberts seeks to strike the references to her desire to buy the property. For the reasons set out above, relating to the parties’ roles as estate trustees, these statements are not covered by settlement privilege. n) Paragraph 83 - Ms. Roberts seeks to strike this paragraph on the basis that the references to the administration of the estate and the prolonged negotiations reference settlement privilege. I reject this argument as well for a number of reasons. First, no litigation was yet contemplated before the sale of the house. Second, these disagreements involve the administration of the estate, and the trustees are both acting for the same party – the estate. As a result, settlement privilege cannot apply to the discussions between trustees in their roles as trustees. o) Paragraph 85 - Ms. Roberts claims settlement privilege over portions of this paragraph. I disagree. This paragraph is simply Mr. Blanks’ assertion of the status of the matter, and his reasons why Ms. Roberts should not be entitled to remain as the sole estate trustee.

[115] Finally, I note that Ms. Roberts has claimed that paragraph 86 should be struck from Mr. Blanks’ affidavit as it is relief that should be included in a Notice of Motion. I reject this request as well. There are a number of places in the materials filed by both parties where law and argument appear in sworn affidavits. I do not intend to review the materials to parse out what belongs in which type of documents. In the circumstances of this case, it is more useful for me to focus on attempting to resolve the substantive issues.

Additional Matter - New Evidence

[116] As I was completing these reasons, Ms. Roberts wrote to me on December 10, 2018, and advised as follows:

More concerns have surfaced that may tie to the issues heard on October 30th. I will seek legal advice as to if and how I may proceed. I believe it may require an additional motion which will require the permission of Justice LeMay.

[117] Last week, I released an endorsement (see 2018 ONSC 7537), in which I directed that, if Ms. Roberts was seeking to rely on additional evidence, she was to file an affidavit outlining what that evidence was, and why it did not come to her attention.

[118] Yesterday, I received that affidavit. It details a series of financial transactions and issues that have arisen in Ms. Roberts’ matrimonial litigation with her former husband, Mr. Gilbert Roberts. Ms. Roberts seeks to link the transactions involving her ex-husband to the sale of the Redstone property.

[119] In the affidavit, Ms. Roberts explains her failure to provide this evidence earlier at paragraph 5, where she states as follows:

Gil’s financial statement, not provided to me until December 2 nd , 2018, caused me to compare circumstances on my family law matter with the concerns I have raised regarding my father, Terry’s estate, and the conduct of my brother, Brian Blanks.

[120] I have reviewed Ms. Roberts’ affidavit, and I am rejecting her request to re-open this hearing and lead this additional evidence.

[121] As described in my previous endorsement, the test for reopening a matter already argued is high, even before the judgment is rendered. The leading case on this issue is 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. In essence, the court must consider two factors:

a) Would the evidence have affected the outcome of the hearing? b) If so, was the evidence discoverable at the time of the hearing?

[122] This new evidence would not meet either part of the test. First, although Ms. Roberts lists a number of transactions that her ex-husband was involved in, she does not provide any connection, other than the dates the transactions took place, to demonstrate that these real estate transactions were related to the sale of the Redstone property. As I have noted above, the coincidence of events happening on dates that are close together is not sufficient, on its own, to demonstrate that there is any reason to investigate the sale of the Redstone property.

[123] In her affidavit, Ms. Roberts does not provide any other connection between these transactions. A connection is not apparent on the materials that I have been given. This finding would be sufficient to dismiss Ms. Roberts’ request to have additional transactions considered on this motion.

[124] I will provide an example of why I do not see the connections that Ms. Roberts alleges between the issues in this motion and the proffered additional evidence. In paragraph 35 of her affidavit, Ms. Roberts speaks to the fact that her ex-husband transferred his father’s cottage into his name and his sister’s name. Then, Ms. Roberts in paragraph 36, states that this transaction significantly undervalued the property. All of that may be true. However, the allegations do not connect to the next paragraph, which outlines certain dates in 2017 relating to the estate account at the Malton branch of the CIBC, and the allegations relating to Mr. MacKenzie’s trust account, which I have already dealt with. There is no visible connection between these events, and there is no explanation from Ms. Roberts as to what the connection is, other than the fact that the dates for various events align. I have already outlined why I do not view the coincidence of dates as being suggestive of any fraud, or any other grounds to investigate the sale of the house.

[125] Even if I am wrong on the first branch, the second branch of the test is also not met. Ms. Roberts explains that she did not advise the court of these transactions earlier because it was the disclosure of the “financial statement” in December of 2018 that brought the connection to her attention.

[126] Putting aside the fact that I cannot actually see any connection between the family law matter and the estate matter, there are two significant problems with this statement. First, most if not all of the transactions that Ms. Roberts identifies took place long before the hearing of this motion. There is no explanation as to why this material was not filed at the time that the motion was heard. Ms. Roberts would have had the bulk of this material in her possession in the course of the family litigation that she has been embroiled in since at least 2012.

[127] Second, there is no explanation as to what “new information” was received on the financial statement. In the absence of this explanation, I must conclude that most of this evidence, even if it was not already in Ms. Roberts’ possession, was discoverable by the use of reasonable diligence on the part of Ms. Roberts.

[128] Finally, the fact that Ms. Roberts did not make connections between various events in a timely way does not mean that she can now raise those events. It is the responsibility of the parties to understand their arguments when they come to court. As I have noted elsewhere, Ms. Roberts was specifically asked if I had all of the evidence necessary to decide these issues, and she confirmed that I did.

[129] At the hearing of the motion, I took into account the fact that Ms. Roberts was self-represented, and permitted her to file additional material, even after she advised me that she had filed everything necessary.

[130] However, as I have noted, this estate is not large, and allowing the continual re-opening and re-litigation of various issues is neither fair to Mr. Blanks nor in the interests of the administration of justice.

[131] For these reasons, Ms. Roberts’ application to re-open the hearing and tender new evidence is denied.

Next Steps

[132] On the materials filed by the parties, there are still some outstanding issues that remain to be adjudicated. Those are Mr. Blanks’ request for directions regarding the Rolex watch and Ms. Roberts’ request that Mr. Blanks be removed as a trustee, and that she continue as the sole estate trustee.

[133] In my view, those matters require no more than three hours to argue, as I already have a great deal of information about this case and have read all of the arguments and materials that have been filed. As a result, I will be offering the parties a one day appointment to conclude the argument on these two issues.

[134] In addition, the parties are directed to turn their minds to whether I should be deferring the consideration of Ms. Roberts’ motion to remove Mr. Blanks as an estate trustee until I have provided all of the necessary directions in this matter.

[135] This brings me to the other issues that appear to require resolution in this case. Based on the submissions that I heard, there may be disputes over the following issues:

a) Whether the estate should pay the account of Jerald MacKenzie. It is my understanding that this account is approximately $5,000. The parties have agreed that this account, if it should be paid, should come out of the estate. For clarity, however, this agreement does not dispose of the issue of whether Mr. MacKenzie was acting for Ms. Roberts or for the estate for the work he did, and these reasons should not be taken as reaching any conclusion on that question. b) Whether Mr. Blanks owes the estate monies. In particular, Ms. Roberts alleges that there are promissory notes of $52,000 and $14,448.74 from Mr. Blanks to the estate. c) Whether Ms. Roberts owes the estate monies. Mr. Blanks claims that Ms. Roberts received a loan in the sum of $40,000 from the deceased. Ms. Roberts asserts that this amount was a gift. d) What amount, if any, is either party entitled to claim from the estate for fees and expenses relating to the administration of the estate. e) If, and only if, Ms. Roberts is entitled to claim fees and expenses from the estate, whether there should be any equitable set-off of occupation rent for the time that Ms. Roberts lived in her father’s house after his passing.

[136] The court has an inherent duty to supervise litigation to ensure that it does not become needlessly protracted. On this point, in Hawkins v. Hawkins Estate, 2013 ONSC 661, at para. 60, Master MacLeod (as he then was) stated at para. 60:

The court has inherent duty and authority to supervise the administration of estates in addition to its duty and authority to supervise the conduct of litigation generally. In this regard it is appropriate to take steps to ensure the litigation does not become protracted or fabulously expensive and that the steps taken by the parties are focused on timely and prompt resolution. In addition, as both civil and estates matters in this jurisdiction are subject to mandatory mediation, the court has a mandate to ensure that the parties make appropriate use of alternative dispute resolution at an early date. Accordingly the action will be case managed. I will remain seized and the court reserves the power to reconsider whether appointment of a neutral third party to administer the litigation might be appropriate should circumstances subsequently demonstrate that is necessary.

[137] While case management under Rule 76 does not apply in this case, I have been designated a case management judge under Rule 37.15. As a result, I have the jurisdiction to hear all motions in this matter, and to ensure that any trials of issues that are necessary are heard in a prompt way.

[138] As a result, I am directing the parties to submit their positions in writing, without argument or case law, on the following questions at least 14 days in advance of the next day of hearing:

a) Whether the list set out in paragraph 135 is complete, or whether there are additional issues that have to be dealt with before the deceased’s estate can be wound up? b) What additional evidence the court requires in order to address the issues that I have set out at paragraph 135 and/or the additional issues that the parties have identified? c) What other parties, if any, need to be provided with notice of these proceedings? How should they be allowed to participate?

[139] The parties’ positions on the outstanding issues are to be limited to two (2) single-spaced pages.

[140] Finally, there is the issue of the court file, the style of cause and whether there should be pleadings in this case. The parties are also to address this issue orally at our next hearing date.

Conclusion

[141] For the foregoing reasons, I Order as follows:

a) There shall be no investigation into the circumstances of the sale of the Redstone property. b) Ms. Roberts’ motion that portions of Mr. Blanks’ affidavit be struck because it contains irrelevant, opinion, hearsay or misleading information is dismissed. Any issues relating to irrelevant, opinion, hearsay or misleading information may be the subject of argument during the hearing of the rest of this motion for directions. c) Ms. Roberts’ motion that portions of Mr. Blanks’ affidavit be struck because it contains privileged information is dismissed, with the exception of her claim that paragraph 16 is settlement privileged. The impugned portions of that paragraph will be struck. d) It is directed that the payment of $15,000, plus 2% interest per annum from August 1, 2016, be made to Amber Roberts from the monies held in trust for the estate by Jerald MacKenzie forthwith after the release of these reasons. It is further directed that the trustees shall forthwith execute any necessary documents to effect this payment. e) In terms of the interest owing, I have calculated that amount to be $716.71 as of December 21 st , 2018. If Amber Roberts, Ms. Roberts or Mr. Blank wish to dispute that calculation, they have seven (7) calendar days to file an affidavit setting out the dispute, the reasons for the dispute, and their proposed calculation. f) The affidavits described in paragraph (e) are to be no more than two (2) single-spaced pages, exclusive of attachments, and are to be served on the other side as well as filed with the court office. Parties are not required or permitted to respond to any affidavits that are filed until I advise that responding material is required. g) The next issues to be determined are the disposition of the Rolex watch and the ring, the question of whether any further issues require direction, and the question of whether one (or both) of the trustees should be removed. This should take no more than one (1) day to argue. I have confirmed with the Trial Office that I can offer dates of either February 28, 2019 or March 1, 2019. The parties are to advise my judicial assistant as to which dates they are not available. h) In advance of the hearing, the parties are to answer the three questions posed in paragraph 138. i) The parties are to be prepared to discuss the issues of the court file, the style of cause and whether there should be pleadings in this case, along with any other procedural issues that need to be considered.

[142] In terms of costs, I have not yet addressed all of the issues that the parties have raised. As a result, it is not yet appropriate to fix costs in this matter, although I retain the jurisdiction to address issues of costs relating to the argument of this part of the motion for directions. For clarity, I also retain jurisdiction over the costs for the appearances before Shaw J. and Bloom J., to the extent that those have not been resolved.

LEMAY J

Released: December 21, 2018

COURT FILE NO.: CV-17-3356-00ES DATE: 2018 12 21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: BRIAN BLANKS - and - CAROL ELIZABETH ROBERTS REASONS FOR JUDGMENT LEMAY J Released: December 21, 2018