DATE: 20021223

DOCKET: C37750

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., GOUDGE AND MACPHERSON JJ.A.

B E T W E E N:

DARRYL LARE, beneficiary of The Lare Family Trust

Mervin Riddell for the appellant

Applicant (Appellant)

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WALTRAUD LARE, JAMES KEE, and WAYNE DONALD EITEL, Trustees of The Lare Family Trust, and WILLIAM A. SHANKS, BRIAN WINSLOW KEMPSTER, former Trustees of The Lare Family Trust, and CHILDREN’S LAWYER, representing any minor, unborn and unascertained beneficiary issue

Stephen Gibson for the respondent

Respondents (Respondents in Appeal)

Heard: December 19, 2002

Released Orally:

December 19, 2002

On appeal from the judgment of Justice W. A. Jenkins of the Superior Court of Justice dated January 8, 2002.

BY THE COURT:

[1] The appellant complains about a number of determinations made by Jenkins J. in disposing of the appellant’s application made on June 14, 2001. Primary among them was the application judge’s finding that he was not satisfied that the trustees had failed to act impartially or had failed to exercise the powers vested in them under the trust. He therefore declined to order that the trustees be replaced.

[2] The appellant complains that two of the trustees have an inherent conflict of interest because they also act for Mrs. Lare. We do not agree that this must disqualify them. It is not an inherent conflict.

[3] He also complains that Mrs. Lare is using an asset of the trust as her own. The application judge had this before him and rejected it as a basis for concluding that the trustees were failing in their duty. We agree.

[4] He also complains about the payment out to Gary Lare and says it should be repaid. The application judge found that this issue had not been properly raised before him, but should be dealt with on the passing of accounts. Again, we agree.

[5] Overall, we can see nothing in the record either by way of misapprehension of the evidence or error in principle that would warrant interfering with the exercise of his discretion to decline to remove the trustees.

[6] The appellant also contests the finding of the application judge that there was no basis to interfere with the decision of the trustees concerning the periodic payments made to the appellant. Again, we see no error in this exercise of his discretion. These trustees have a wide discretion themselves under this trust and their actions in this regard were not in our view unreasonable.

[7] Finally, the fixing of costs by the application judge as he did was entirely justified on this record and we would not interfere.

[8] The appeal is dismissed with costs fixed at $5,500.

Released: December 23, 2002 “RRM”

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”