DATE: 20030523

DOCKET: C37454

COURT OF APPEAL FOR ONTARIO

RE:

HEATHER BRIESE (Applicant (Appellant)) – and – NANCY SPENCER (Respondent (Respondent in Appeal))

BEFORE:

MOLDAVER, GOUDGE AND CRONK JJ.A.

COUNSEL:

Daphne Johnston

for the appellant

Bonnie R. Warkentin

for the respondent

HEARD & ENDORSED:

May 22, 2003

On appeal from the order of Justice J.D. Cunningham of the Superior Court of Justice dated November 22, 2001.

A P P E A L B O O K E N D O R S E M E N T

[1] The applications judge ruled that there was no conflict sufficient to warrant the removal of the respondent as executrix/trustee. On the basis of the record before him, he determined that there was no other creditor of the estate except the executrix/trustee in her capacity as residual beneficiary. We agree with his findings and conclusions, all of which were open to him based on the application and the evidence filed.

[2] Accordingly, the appeal is dismissed with costs payable to the respondent on a partial indemnity basis in the amount of $4000.00 inclusive of G.S.T. and disbursements.