DATE: 20031117
DOCKET: C39006

COURT OF APPEAL FOR ONTARIO

RE:

BEVERLEY RUSLING (Applicant/Appellant) v. LINDA FAIRBAIRN-HATNEAN IN HER CAPACITY AS ESTATE TRUSTEE FOR THE LATE NELLIE MAY FAIRBAIRN (Respondent/Respondent)

BEFORE:

O'CONNOR A.C.J.O., CATZMAN and DOHERTY JJ.A.

COUNSEL:

Dawn Melville for the appellant

Steven Bezaire for the respondent

HEARD & ENDORSED:

November 13, 2003

On appeal from the judgments of Justice E. Ducharme of the Superior Court of Justice dated September 24, 2002 and October 22, 2002.

APPEAL BOOK ENDORSEMENT

[1] Ducharme J. made two important findings of fact. First, when the appellant executed the October 2000 document, she intended to release her mother's estate. Second, Ducharme J. found that the respondent, who was not cross-examined on her affidavit, "engaged in no improper or unlawful purpose in the exercise of her duties as estate trustee".

[2] There was ample evidence to support each of those findings of fact. There is no dispute that the appellant had the relevant estate records at the time she signed the October 2000 documents and she made no objection until over a year later.

[3] The appeal is, therefore, dismissed.

[4] Costs to the respondent are fixed in the amount of $3,500, inclusive of GST and disbursements.