Court File and Parties
COURT FILE NO.: CV-23-00705616-00ES DATE: 20240214 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID DOUGLAS RICHARDSON, Applicant AND: LYNDA JOANNE PETRIE, in her personal capacity and in her capacity as Estate Trustee for the Estate of John Kenneth Douglas and GEOFFREY SMITH RICHARDSON, in his personal capacity, Respondents
BEFORE: M.D. Faieta J.
COUNSEL: Arieh Bloom & Melissa Saunders, for the Applicant David A. Brooker, for the Respondent Lynda Joanne Petrie in her personal capacity and in her capacity as Estate Trustee for the Estate of John Kenneth Douglas Self-represented, Geoffrey Smith Richardson
HEARD: February 7, 2024
Endorsement
[1] The Applicant David Douglas Richardson (“David”) brings this Application for an Order suspending the appointment of the Respondent Lynda Joanne Petrie (“Lynda”) as the Estate Trustee of the Estate of the John Kenneth Douglas Richardson and appointing Brahm Rosen as the Estate Trustee During Litigation (“ETDL”). Both Lynda and her brother Geoffrey Smith Richardson (“Geoffrey”) oppose this Application.
Background
[2] John Kenneth Douglas Richard (the “Deceased”) died on March 24, 2013. Each of the parties are the Deceased’s adult children. Under a Will dated June 21, 2010 (the “Will”), the parties are the sole and equal beneficiaries of the Deceased’s estate. The Deceased was pre-deceased by his wife. In those circumstances, the Will appoints Lynda as Executrix (“Lynda” or “Estate Trustee”). Shortly after the Deceased’s passing, a Certificate of Appointment was issued to Lynda.
[3] In the 1980s, David became involved in a manufacturing business, Precisioneering Limited, that was owned and operated by the Deceased (the “Business” or “PL”). David is now PL’s President and majority shareholder.
[4] PL is the sole tenant of a single-storey industrial building located in Toronto. The building has a leasable floor area of 22,440 square feet, on about 2 acres of land (the “Property”). The Property is owned by JAD Investments Corporation (“JAD” or the “Landlord”). JAD was owned by the Deceased and now all of JAD’s shares are owned by his Estate.
[5] PL has leased the Property since November 1985. Amendments to the lease extended the term of the lease to November 30, 2012. The lease, as amended, gave PL the right to extend the lease for a five-year term. PL exercised that option and the term of the lease was extended to November 30, 2017. Since that time PL has been an overholding tenant.
[6] In an email dated May 12, 2015 to Lynda and Geoffrey, when asked for the approximate time frame that they would continue to hold the Property, David stated:
I would like to retain the ownership of [the Property] until I sell my shares in [PL], tentatively 5 years or less. Ideally, it would be nice to offer the building for sale with the company. If either you or Geoff wants out sooner, I would be agreeable to buy either out or both of you out if so desire, based on fair market value.
[7] On this Application, David states that it was the Deceased’s intention that the Property would be sold at the same time as the Business was sold. David also states that the Deceased told him that he could operate the Business out of the Property for as long as he wanted. There is no documentary evidence to support these assertions.
[8] On January 9, 2020, Lynda asked David what his plans were to sell PL:
… We should talk about [the Property] and how to move forward. Both Geoff and I are in need to have this resolved, but as always need to consider your situation too.
Do you have any recent information on the value of the property? How is your attempt to sell [PL] going?
As you know, if you don’t want to list it at this time, the only solution is for you to purchase the property. I had an appraisal done putting the value just over 5 million. I believe you commented someone thought we could sell it for more.
So, to discuss … timing? How to arrive at value? Do we get 2 more valuations? Decide on a number? … Please let us know your thoughts.
[9] In July 2020 David suggested terms for the purchase of the Property that were not acceptable.
[10] In an email to David and Lynda that was sent on July 22, 2020, Geoffrey stated that he would like to sell the Property “… publicly to achieve fair market value to maximize a return as soon as possible.”
[11] In response, on the same day, David sent the following email message:
… Selling [the Property] publicly, to get the highest value is not possible while [PL] is in the building.
The cost for JAD to evict [PL] will take a long time and be very expensive for JAD. Not to mention the extra pressure being put on JAD for trying to evict a 50 year old tenant during the COVID-19 pandemic. Not to mention I would sue Lynda as the Executrix of the estate for throwing my portion of the estate away on legal fees, for trying to evict me while I am willing to work with both of you to find a solution. …
I highly suggest we try to find a mutual solution. I am trying to put millions in your pocket as soon as possible finding a palatable solution for everyone. If you want to take the high road it will create a huge amount of stress in your life, which we want to avoid, and it is unlikely you will receive more money anytime soon, after spending years in court.
If you want to find a good solution for everyone let me know. … If not hire a lawyer and we can start the long and confrontational battle.
As President and CEO of [PL], I have no choice but to look out for shareholder’s best interests. Moving from [the Property] is not in [PL’s] shareholders’ best interests. Aside from the moving costs we are Grandfathered from requiring certain permits. If we moved we would need to apply for those permits, which I will do anything to avoid regardless if it means doing battle with my Brother and Sister.
So think wisely.
I will always be the best friend you can ever have if we work together. I have spent a considerable amount of money, saving JAD a considerable amount of money, doing leasehold improvements at my own personal cost and at [PL]’s expense when JAD should have been responsible.
Your loving brother. [Emphasis added]
[12] In a further email to Geoffrey and Lynda on July 22, 2020, David stated:
… My point is I won’t allow anyone in the building to look at it, or put any signs on the property, so it would be very difficult for you and Lynda to try to sell the building. We need to find a mutually agreeable solution.
[13] In 2021, Lynda states that she and Geoffrey told David that they wanted the Property purchased by David, or for him to agree that the Property would be sold to a third party, as both Geoffrey and Lynda no longer wished to wait to be paid the bulk of their inheritance.
[14] Lynda states that she retained Sharon Davis as a mediator in an attempt to negotiate a price for David’s purchase of the Property. In April 2021, all three parties met with the mediator; however, David refused to even consider negotiations. David states that while he was initially agreeable to purchasing the Property from the Estate, he was unable to obtain the necessary financing.
[15] Around this time, in 2021 and 2022, David asked that JAD sign a long-term lease with PL. Lynda refused to do so. Lynda states:
I told him that I was not prepared to do so as it would lead to a lower sale price for the Property, and I did not want JAD to enter into any long-term contracts. I had told David, and he was aware, that the Property is worth more untenanted or without a long-term lease obligation. I again reiterated to David that if he wanted he could purchase the Property and then enter into any lease agreement with [PL] that he wished.
[16] By 2022, Lynda had decided that she had “had enough of David’s stalling” and would sell the Property on the open market. On behalf of the Estate, Lynda obtained an appraisal from the firm of Wagner Andrew Kovacs, dated February 22, 2022, which opined that, as of February 10, 2022, the market value of the Property was $8.9 million.
[17] In the Spring of 2022, David told Lynda that he might have a potential buyer for his business. Eventually, Lynda received a letter from Point Grey Commercial Advisors Inc. (“Point Grey”) indicating that it was interested in purchasing PL and renting the Property. Lynda refused to entertain a further rental of the Property. Point Grey responded that it would seek to purchase both PL and the Property.
[18] In September 2022, Lynda received an offer to purchase the Property for $8.6 million, with a closing on October 31, 2022, from “Point Grey Commercial Advisors Inc. in trust for a Company to be named later and without personal liability” signed by Bernard Batt. This offer was subject to numerous terms and conditions including: 1) the Seller would provide any environmental reports and assessments to the Purchaser within 10 days; 2) the Seller would sign a document authorizing the Buyer, its agents and any governmental authority to amongst other things conduct onsite inspections; 3) the Buyer would be permitted to conduct any reasonable tests that it deemed necessary including inspections in support of a Phase 1 and Phase 2 Environmental Report; 4) the purchase would be conditional for 30 days following the execution of the offer upon financing; 5) the purchase would be conditional for 30 days following the execution of the offer upon the Buyer being satisfied with the environmental status condition of the Property and the neighbouring lands; 6) the purchase would be conditional for 30 days following the execution of the offer upon Point Grey purchasing PL (the “September 2022 Offer”).
[19] On behalf of JAD, Lynda signed the September 2022 Offer on September 21, 2022.
[20] Point Grey requested and was granted an extension of the closing date until March 2023 to allow it further time to complete its due diligence work. On March 2, 2023, Point Grey sought a further extension to permit it to compete further environmental testing recommended by their consultants and their lenders. In refusing to grant a further three-month extension, Lynda, through counsel, advised Point Grey on March 3, 2023, as follows:
… The purchaser has requested multiple courtesy extensions, all which have been granted by the vendor except for its most-recent request, which request the vendor was prepared to conditionally grant, but the parties were not able to agree on the terms.
The purchaser has advised that the remediation of the contaminated soil will cost in excess of $1M and demanded that [the] vendor contribute to these efforts – the vendor agreed to reduce the purchase price by $400,000, despite the fct that the purchaser will likely not proceed with the remediation of the contaminated soil as same would require demolition of the building on the property, the building out of which [PL] operates. The quote provided by EXP [Services Inc.] expressly assumes that any remedial activities will be carried out during future redevelopment of the Site when the existing building is demolished, which the purchase does not intend on doing, but our client agreed to a $400,000 price reduction nonetheless. …
[21] The email notes that Point Grey refused to release its environmental reports as a term of the extension in lieu of compensation in the event that Point Grey elected not to proceed with the purchase.
[22] Lynda states that Point Grey’s nominee, Bernard Batt, advised her in June 2023 that he would agree to purchase the Property for the current appraised value less an amount representing an estimate for environmental remediation. Lynda obtained a further appraisal from Wagner Andrews Kovacs which appraised the Property as having a fair market value of $9.5 million as of June 30, 2023. The appraisal assumed that the Property was not contaminated. Lynda also obtained a report dated August 18, 2023, from PGL Environmental Consultants, who were approved by Point Grey, which provided an estimate of $650,000 for the remediation. PGL was not provided with the phase 1 and phase 2 environmental reports previously prepared by EXP Services Inc. on behalf of Point Grey, but PGL found that Point Grey’s failure to share the report did not limit their ability to provide an opinion as PGL was provided with a letter from EXP that provided a “robust review” of the reports’ findings.
[23] On August 22, 2023, Lynda sent an email to Mr. Batt that offered to sell the Property on a “as is, where is” basis for $8.5 million – no conditions, a closing date of November 30, 2023 and a minimum nonrefundable deposit of $250,000.00.
[24] On August 23, 2023, Bernard Batt sent an email to Lynda with essential terms for a further offer:
My offer stands at $8.9M minus $300K for as is where is, a true up to the actual value of vacant land estimate at $250K, minus the $650K remediation estimate, to be updated when they are able to review the phase I and phase II.
It is clear that the comparables reflects a decrease in the value of the property not an increase. $100K refundable deposit if business not purchased. This is an exceedingly fair offer that is real and will complete in 4 months.
[25] On August 28, 2023, David commenced this Application.
[26] In September 2023, Lynda received another offer from Point Grey to buy the Property for $7.65 million with a closing date of January 31, 2024 and a refundable deposit. The terms and conditions largely mirror Point Grey’s earlier offer. Lynda states that:
Point Grey specifically wanted to maintain an ability to claim against JAD and the Estate subsequent to closing for environmental and other claims, to which I had previously indicated I would not agree (and without advising what those are from its reports or even agreeing to disclose them). As [PL] had been the sole occupant of the Property since 1985, if there were issues with contamination or otherwise, it was JAD’s position that if there was any liability arising therefrom, then it would be [PL]’s and it should be liable, if anyone, for these costs but David would not agree to this.
[27] At the end of September 2023, Lynda sent back a counter-offer of $8 million to Point Grey. She has received no response.
[28] Lynda advised David that she would list the Property for sale given the lack of response from Point Grey.
[29] On December 21, 2023, an Order scheduling the exchange of materials for this Application was granted by Justice Gilmore.
[30] Lynda and Point Grey exchanged offers in December 2023.
[31] On January 10, 2024, counsel for Lynda sent the following letter to counsel for Point Grey:
As you know we have been going around in circles on this matter for over a year now. … In order to give it another try, I would suggest the following:
- Prepare a new Schedule “A” that you believe would be acceptable to the vendor and we will give it our immediate attention, or;
- Send us an unconditional offer for $7.8 million dollars with a fast closing and we will give it serious consideration.
It would also be much appreciated if you could advise us as to the status of the negotiations between Bernie and David for the purchase of [PL]. …
[32] There has been no substantive response from Point Grey to this last offer.
[33] Lynda states:
The entire process of negotiations with Point Grey and David for the sale of the Property appear designed to give it favourable conditions and a low value price at the expense of the Estate in order to favour [PL] and David personally, who stand to benefit from its sale to Point Grey; this was after years of delay on David’s part in promising to purchase the Property himself or agreeing for the Estate to sell it. Indeed, the within proceeding seems designed to attempt to pressure me to sell the Property to Point Grey on terms that would not be beneficial to the Estate but would favour David.
If a “neutral” Estate Trustee were appointed to deal with the Property, it would not be able to enter into any lease agreement with [PL], nor sell it to Point Grey on its favourable terms, as either or both of thse actions would be detrimental to the Estate and would be opposed by myself and Geoff on these grounds. Further, another Estate Trustee would have to be paid fees by the Estate, while I have not taken any fees for the over 10 years I have acted.
[34] Lynda also claims that there are arrears of rent owned by PL. She states:
In addition to refusing to pay for maintenance and repairs in accordance with the ongoing rental agreement as [PL] has been doing since its commencement of occupancy in 1985, it is also in arrears of rent in the amount of $115,262.00 as of January 1, 2024; …
Despite numerous requests made of David to have [PL] pay its arrears he has refused to do so and instead pays an arbitrary amount of $16,900.00 which I believe represents $15,000 plus HST.
Again, it is my belief that David has directed [PL] to pay less than the amount it is legally required as a means to attempt to pressure me to agree to Point Grey’s conditions and price for a sale. If a neutral Estate Trustee is appointed, I would expect it to pursue [PL] for all arrears and to terminate its tenancy based upon non-payment of rent (and failure to make adequate repairs) as this would be in the best interest of the Estate. I have forgone these steps for the time being because David is my brother, and I was hoping to coming to an amicable solution to all outstanding issues.
[35] In support of his request for the appointment of an ETDL, David states:
I found a purchaser who was willing to purchase the property for the price reflected in the appraisal that Lynda obtained. …
[PL] has always paid rent to JAD and there are no arrears. …
Lynda’s choice to reduce the purchase price for the property was the result of her continued inability to negotiate this transaction in a sophisticated manner. For instance, she refused to enter into any agreement that had any conditions, including in respect of the environmental and remediation issues. …
Lynda refuses to investigate the environmental contamination issue. Instead, she continues to lower the purchase price as opposed to negotiating a deal in a commercial manner. …
It is untrue that my actions are geared towards reducing the price of the property. It is Lynda’s conduct, and her conduct alone, which is dictating the sale price, including its continued reduction.
On February 1st, 2023, Lynda put the sale of the property and business on hold by not providing an extension from a potential buyer for more than 8 months.
As an example of the dysfunction in Lynda and my ability to work together in resolving the estate administration issues tied to [PL] and JAD, Lynda refused to negotiate to sell the property unless I agreed to her various demands. I believe Lynda’s animus toward me was interfering with the sale of the property. It took getting litigation counsel involved for Lynda to restart negotiations.
Lynda even refuses to meet with me to discuss the cost and payment for repairs to the building and property, and come to a resolution on who much rent should be paid by [PL] to JAD. No resolution has been reached. …
Analysis
[36] The following principles that govern the removal of an estate trustee and their replacement with an ETDL:
In addition to the authority provided by sections 5 and 37 of the Trustee Act, R.S.O. 1990, c. T.23 to remove and replace a trustee, this court has inherent equitable power to appoint and remove a trustee: Chambers Estate v. Chambers, 2013 ONCA 511, 367 D.L.R. (4th) 151, at para. 101.
A court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee: Chambers Estate, at para. 95.
A court should remove an estate trustee only on the “clearest of evidence”: Chambers Estate, at para. 95.
In determining whether a trustee should be removed, a court’s main guide must be the welfare of the beneficiaries: Gonder v. Gonder Estate, 2010 ONCA 172, at para. 26. In Di Michele v. Di Michele, 2014 ONCA 261, at para. 84, Gillese J.A. stated:
The court will remove an estate trustee only if doing so is clearly necessary to ensure the proper management of the trust: Re Weil, [1961] O.R. 888 (C.A.), at p. 889. Situations in which removal may be justified include where the estate trustee has acted in a way that has endangered the trust property or otherwise shown a lack of honesty, proper capacity, or reasonable fidelity …
Aside from the circumstances in Rule 75.06(3) of the Rules of Civil Procedure, a court has the inherent jurisdiction to appoint an ETDL in order to ensure a level playing field so that justice can be done in the proceeding: Mayer v. Rubin, 2017 ONSC 3498, at para. 31.
Given that the appointment of an ETDL is a temporary measure, a lower standard is applied. In Mayer, at paras. 30-36, Myers J. stated:
30 In dealing with estate trustees pending litigation however, something much less intrusive is involved. Executors and trustees may need to stand aside for a period of time so as to allow them to exercise full throated adversarialism. The parties' duties as fiduciaries can be inconsistent with their ongoing litigation interests. They often cannot be loyal and selfless to each other while they are adverse in interest in litigation. Looked at from the estate's perspective, the estate should be neutral as between the participants in the litigation. Properly instructed, the estate should want to be left alone. Its assets should be administered to maximally benefit the interests of the beneficiaries and to be neutral in regard to positions of the parties in the litigation. …
34 In appointing an estate trustee during litigation, the court will consider the balance of convenience. […] Recently, the court appointed an estate trustee to protect the estate from the trustees' animosity in Gefen v. Gaertner. […]
35 In McColl v. McColl, Greer J. made the point that the appointment of an estate trustee pending litigation whether under s. 28 of the Estates Act or Rule 75.06 (3)(f) is not extraordinary. In fact, she approved the suggestion in Estate Litigation, B. Schnurr, at c.24.2 that "[a] decision to refuse the appointment should only be exercised in the clearest of cases". She adopted the author's further suggestion that the court will favour appointment in the vast majority of cases unless the administration of the estate involved is particularly straightforward or simple.
36 I agree. It is in the interests of all beneficiaries that the assets of the estate be immunized from the tactics employed by litigating parties. The court must protect the level playing field. Neither side should be able to use their control over the estate to benefit themselves or to prejudice the other. It is a simple inference that a trustee who is in an adversarial position towards a co-trustee or a beneficiary should not normally be left in charge of trust property. Simple prudence calls for the temporary replacement of a trustee who is in an adversarial position with a co-trustee or a beneficiary. It is not an insult to anyone's integrity to understand that conflicts of interest are insidious. Conflicts of interest play havoc with peoples' judgment of their own capacity to maintain neutrality and a fiduciary stance. The facts of this case make the truth of that proposition clear. [Citations omitted.]
- An ETDL does not have carte blanche to force a sale of property in a manner that does not serve the interests of the Estate’s beneficiaries. As Myers J. further stated in Drennan v. Drennan, 2024 ONSC 141, at paras. 43-44:
43 The ETDL is a temporary steward of assets. He is empowered to act as an estate trustee while the parties are in a dispute. An ETDL may take steps that an estate trustee is entitled to take in the exercise of his or her fiduciary duties but only where such steps are appropriate for an ETDL.
44 An ETDL does not have carte blanche to ignore the parties who have real interests in the estate. Neither can an ETDL ignore that fact that its appointment is temporary to await the parties’ dispute. If the ETDL concludes that the house should be sold before the dispute is determined, the ETDL should be seeking the input of the beneficiaries and ensuring the parties’ entitlement to try to have their say in court if so inclined.
[37] While the negotiations for the sale of the Property are not simple given its contamination, the terms of PL’s various offers and the fact that David opposes the sale of the Property on the open market, Lynda as Estate Trustee has retained legal counsel to provide her with the necessary legal expertise to guide her in the administration of the Estate. David’s submission that Lynda does not have the ability to handle the negotiations for the Sale of the Property has no merit.
[38] Lynda, with her brother Geoffrey’s support, seeks to sell the Property on terms, such as price and environmental warranties, that are most favourable to the Estate. This is consistent with her obligation as Estate Trustee to administer the Estate to the maximum advantage of its beneficiaries.
[39] Because he operates a business on lands owned by the Estate, it is David, not Lynda, who is in a position of conflict with the Estate:
(a) PL is an overholding tenant. David states that Lynda, on behalf of JAD, has failed to negotiate a new lease with PL. JAD, and thus Lynda, have no obligation to do so. While a new lease could increase the sale value of PL’s business, Lynda reasonably takes the position that the sale value of the Property would likely be harmed if a prospective buyer had to assume a long lease.
(b) David’s submission that Lynda on behalf of JAD has refused to pay for capital improvements and repairs that he requested, such as a new roof, is misguided. David ignores the fact that the Lease states, on page 2, that PL, not JAD, is responsible for the repair of the premises.
(c) David submits that when Point Grey discovered that the Property was contaminated, Lynda refused to take any steps to investigate the source of contamination and instead took the position that PL was responsible for the contamination and for the remediation costs. David ignores the fact that the Lease requires PL to indemnify JAD and save JAD harmless “… from and against all losses, costs and damages suffered or incurred ….or in any way connected with … the presence … of any contaminant in, on or under the premises”. Given the terms of the Lease, PL should have paid for any investigation undertaken by JAD on the Property. Further, in respect of his request for an offsite investigation, David does not explain on what authority JAD would enter adjacent properties to investigate for potentially migrating sources of contaminants. Nor does he explain the wisdom of this approach, particularly as it could result in litigation or regulatory involvement that would likely further delay the sale of the Property. Finally, it is clear from the PGL report that PL’s operations involved the use of contaminants and, as a result, it is not surprising that contaminants were found under the building. As a practical matter, there should be no need for JAD to further investigate this matter as: 1) David does not explain why there should be an offsite investigation when the contamination was found under its building; 2) The estimated cost of remediation is relatively modest compared to the appraised value of the Property and, 3) Given the environmental indemnity provided by PL to JAD, the costs of any such remediation rests with PL not JAD.
(d) David submits that Lynda has failed to meaningfully engage in the sale process with Point Grey. That is a nonsensical submission. Lynda has made several offers, and entertained several offers, from Point Grey. She has retained counsel to provide advice and representation to the Estate in respect of these negotiations. The offers have had various terms, related to price, closing date, and warranties and representations that survive closing. Neither Lynda nor her brother Geoffrey want an environmental warranty or representation that survives closing. That is a commercially reasonable position for a vendor. Ironically, David also criticizes Lynda for offering to reduce the sale price of the Property in exchange for a release from all environmental representations and warranties. This is also a commercially reasonable position. I reject David’s submission that Lynda has taken an unreasonable position in JAD’s negotiations with Point Grey.
(e) David states that Lynda’s conduct towards PL as a tenant is motivated by feelings of animus towards him. David also states that Lynda is showing bias in favour of their brother by keeping Geoffrey, but not David, up to date on discussions between her and the prospective purchaser. There is no animus towards PL. Lynda’s behaviour is to the contrary. The Estate has permitted PL to be an overholding tenant for many years. PL has continued to operate at the site. The largest asset of the Estate remains undistributed largely because Lynda and Geoffrey have attempted to meet David’s expectations – after gently prodding him for many years, he finally announced in 2020 that he was not going to buy the Property. David then threatened to sue Lynda if the Estate were to evict PL. Lynda also sought to sell the Property to someone who would buy PL so that David would benefit from the sale of the business.
[40] Lynda, with Geoffrey’s approval, has attempted to help David maintain the value of PL by allowing David time to try to arrange financing for his purchase of the Property. Eight years after their father died, David finally acknowledged that he could not afford to purchase the Property and sought to find a buyer for both PL and the Property. The buyer that David eventually found, Point Grey, may be suitable for David (although an agreement of purchase and sale has not been shared with the Estate), but has been unable to reach an agreement with Lynda regarding the sale of the Property. The allocation of the environmental liabilities and risks associated with the Property appears to be a matter that David insists be borne by the Estate despite the terms of the Lease.
[41] With David’s intransigence, and only one potential buyer presented, I fail to see how a “neutral” estate trustee will resolve this issue any quicker or better than Lynda has attempted. Lynda’s personal interest in negotiating a sale of the Property with the goal of maximizing the sale price of the Property while minimizing the representations and warranties that survive closing does not conflict with her obligation as Estate Trustee to, using the words of Myers J., “maximally benefit the interests of the beneficiaries”. However, the proper administration of the Estate does conflict with David’s view that, in respect of the Property, he has no choice but to look out for the best interests of PL’s shareholders which would not be served if PL was evicted or if the Property was sold to someone who was not buying PL’s business. As much as Lynda has attempted to accommodate PL’s interests in the name of family unity, and to avoid David’s threat of litigation, she is under no obligation to do so. There is no merit to David’s submission that an ETDL should be appointed because Lynda “…has threatened to sell the Industrial Lands without being tied to the sale of the Business to the same purchaser …”. Lynda is under no obligation as Estate Trustee to do so.
[42] While this Application could be viewed as an attempt by the Applicant to bully the Estate Trustee into administering the Estate in a manner that does not maximally benefit the interests of the beneficiaries, it is sufficient for me to find that, in the circumstances of this case, justice would not be done in this proceeding by the suspension of Lynda as Estate Trustee and the appointment of an ETDL.
[43] Given the many years that have passed since the death of the Testator and the efforts that Lynda has made to try to sell the Property in a commercially reasonable manner to Point Grey, she has appropriately sought to turn the page in the administration of this Estate by deciding to list the Property for sale on the open market. A prospective purchaser can buy the Property without PL’s business. The suggestion that PL should be able to operate from the Property indefinitely based on alleged statements by the Deceased to David regardless of whether it has a lease is fanciful, particularly as the lease, and the amendments thereto, reflect no such promise.
[44] I dismiss the Application for the appointment of an ETDL. Given the court’s broad authority to make orders in respect of the administration of a trust, I order that the Estate Trustee shall make all reasonable efforts to proceed with listing the Property for sale on the open market as soon as possible. The Applicant shall make all reasonable efforts to cooperate with the listing and showing of the Property.
[45] David submits that Lynda has failed to account over the 11-year administration of this Estate. The materials filed showed that Lynda, by way of email, provided a very informal accounting many years ago. There is no evidence that David has pressed for an accounting and been refused. It appears that this request is now being advanced simply for strategic reasons. Counsel for Lynda advised the court that Lynda does not object to an order requiring her to bring an application to pass her accounts.
Decision
[46] The Application to suspend Lynda as the Estate Trustee and to grant an Order appointing Brahm Rosen as ETDL is dismissed.
[47] Order to go as follows:
(a) The Estate Trustee shall make all reasonable efforts to proceed with listing the Property for sale on the open market as soon as possible. (b) The Applicant shall make all reasonable efforts to cooperate with the listing and showing of the Property. (c) The Respondent Lynda Petrie shall commence an application to pass her accounts in respect of her administration of the Estate up to February 29, 2024 by April 30, 2024. (d) Any matters pertaining to the administration of this Estate shall come back before me, if I am available. (e) The parties shall deliver written submissions in respect of costs by February 21, 2024 and shall deliver written reply submissions by February 28, 2024. The maximum length of each submission shall be three pages excluding any offers to settle.
Mr. Justice M.D. Faieta
Date: February 14, 2024