DATE: 20010531

DOCKET: C35311

COURT OF APPEAL FOR ONTARIO

RE:

VIRGINIA COLEMAN in her capacity as Estate Trustee of the Estate of Jessie Elizabeth Brown (Plaintiff/Respondent) and NATIONAL TRUST COMPANY, THOMSON KERNAGHAN & CO. LIMITED, and JOHN ROSS HETHERINGTON by his litigation guardian Robert John Hetherington, CATHERINE AGNES FALLIS, Executrix of the Estate of George A. Fallis, Deceased, ADO PARK, JOHN SAMUEL HARCOURT CARRIERE, JOHN ROBERT WATT and ROBERT CHARLES WATT (Defendants/Appellant)

BEFORE:

MORDEN, ABELLA and MOLDAVER JJ.A.

COUNSEL:

Richard H. Parker,

for the appellant Robert Charles Watt

John O’Sullivan,

for the respondent

HEARD:

MAY 28, 2001

On appeal from the judgment of Mr. Justice Paul Rivard dated October 16, 2000.

E N D O R S E M E N T

Released Orally: May 28, 2001

[1] The question whether the appellant misappropriated funds from the Brown estate is not a genuine issue for trial. The motions judge’s conclusions on this issue and on the issue of liability are correct.

[2] However, we do not think that the motions judge was correct on the matter of the amount of the recovery. It is conceded by the respondent that it was incorrect to compound the interest in arriving at the total judgment amount. Further, we are not satisfied that there was no genuine issue for trial with respect to amounts that should have been credited in favour of the appellant. In this latter regard, we refer, for example, to the approximately $200,000 worth of assets referred to in paragraph 2 of Master Linton’s Fourth Interim Report.

[3] Accordingly, the appeal is allowed and, subject to our conclusions respecting misappropriation and liability, the judgment is set aside and the motion is dismissed. Success has been divided. There will be no order respecting costs of the motion and of this appeal.

“J.W. Morden J.A.”

“ R.S. Abella J.A.”

“M.J. Moldaver J.A.”