Court of Appeal for Ontario

Date: 2001-01-17

Docket: C33647

Re: THE PUBLIC GUARDIAN AND TRUSTEE (Applicant (Respondent in Appeal)) v. CONSTANTIN PATSALAS, an Incapable Person (Respondent (Next of Kin, Applicants in Appeal))

Before: McMurtry C.J.O., Catzman and Feldman JJ.A.

Counsel: G. W. Alexandrowicz, For the Next of Kin, Patsalas Z. J. C. Prattas, For the appellants M. J. Prsa, For Administrator Pending Litigation of the Estate of Patsalas D. F. Bur, For the respondent

Heard: November 27, 2000

On appeal from the decision of Justice Susan E. Greer dated January 13, 2000.

ENDORSEMENT

[1] This is an appeal from the decision of Greer J. dated January 13, 2000 in relation to a contested passing of accounts with respect to the administration of the estate of Constantin Patsalas pursuant to the provisions of the Mental Health Act. The Public Guardian and Trustee (PG & T) had been the Committee of the deceased for two months before his death. Section 69 provides as follows:

Upon the death of a patient or out-patient of whose estate the Public Trustee is committee and until letters probate of the will or letters of administration of the estate of the patient or out-patient are granted to a person other than the Public Trustee and notice thereof is given to the Public Trustee, the Public Trustee may continue to manage the estate and exercise with respect thereto the powers that an executor would have if the property were devised or bequeathed to the executor in trust for payment of debts and distribution of the residue.

[2] The disposition by the deceased of his assets under his will was unclear. The Public Guardian and Trustee (PG &T) administered the Estate for some years during the litigation process.

[3] The major complaints of the next of kin about the accounts relate to the administration by the PG &T of the deceased’s real properties.

[4] In our view, Greer J. dealt fairly with the issues that were raised by the appellants in their Notices of Objection to Accounts based on the limited record before her.

[5] Greer J. found that the PG & T was liable to the Estate but the appellants submit that the damages calculated by Greer J. were in error.

[6] We have carefully considered the issues raised by the appellants. We are unable to find any palpable or overriding error with respect to the calculation of the damages by Greer J. The record before her was incomplete. It would have been open to the appellants to introduce evidence, particularly with respect to the real estate market in relation to the sale of the Courcellette property and in relation to the overpayment of the storage fees. In the circumstances, it may well have been advisable for Greer J. to have directed a trial of the issues that were in dispute, but this was not requested by the appellants.

[7] The appeal must therefore be dismissed, but in the circumstances of the management of the Estate by the PG & T, there will be no order as to costs.

"R. Roy McMurtry C.J.O."

"M. A. Catzman J.A."

"K. Feldman J.A."