CITATION: Painter v. Painter Estate, 2008 ONCA 203
DATE: 20080325
DOCKET: C46451
COURT OF APPEAL FOR ONTARIO
WEILER, MOLDAVER and JURIANSZ JJ.A.
BETWEEN:
ERNEST WALTER PAINTER
Applicant (Appellant)
and
THE ESTATE OF LILLIAN HELEN PAINTER (Deceased), DAVID J.PARTRIDGE, Estate Trustee, GRANT WILLIAM PAINTER and WILLIAM SAMUAL PAINTER
Respondents (Respondents)
Orie Niedzviecki for the appellant
Heather Hall for the respondent, The Estate of Lillian Helen Painter (Deceased)
Karl K. Beyer and Ewelina Chwilkowska for the respondent, Grant William Painter
Heard: March 18, 2008
On appeal from the judgment of Justice C. Stephen Glithero of the Superior Court of Justice dated November 27, 2006.
ENDORSEMENT
Nature of Appeal
[1] The appellant and his brother are co-beneficiaries of the estate of his mother Lillian Helen Painter. Glithero J. dismissed the appellant’s application, which, although styled as a Rule 76 motion for directions, proceeded on consent as an application for substantive relief. The appellant appeals all the matters raised in his application.
Issues
1. Did the application judge err in failing to order the estate trustee to pass accounts of the estate?
[2] The application judge properly determined that the ongoing disputes between the brothers prevented the realization and distribution of many of the assets of the estate. Although the appellant agrees that the application judge had a discretion to refuse to order a passing of accounts, he submits that the discretion was not properly exercised.
[3] It is evident where most of the liquid assets of the estate have gone. The application judge’s decision was reasonable and was no doubt intended to avoid further costs respecting this modest estate. It is not for us to second guess his exercise of discretion.
2. Did the application judge err in finding that appellant was not the 100% beneficial owner of the two joint bank accounts?
[4] The appellant submits that the application judge erred in stating that the appellant’s position was that his mother had given him the money that was in the joint accounts. Earlier, the application judge had correctly stated, in para. 33 of his reasons, that the appellant’s position was that he had put all the money into the accounts. The appellant seeks the trial of an issue respecting the joint bank accounts.
[5] The appellant acknowledges that to the extent he asserts ownership of assets owned jointly with the deceased, s. 13 of the Evidence Act requires independent corroboration. There was none before the application judge. The evidence adduced by the appellant was not corroborated by any evidence independent of himself (such as banking records of deposits). In the result, therefore, the application judge was correct in his conclusion.
[6] Before us, the appellant says that he provided independent proof to the estate trustee of his ownership but that this was not in the application record. The appellant, a former lawyer, represented himself before Glithero J., and now wants an opportunity to present that evidence.
[7] On this appeal, we have no evidence filed by way of an application to admit fresh evidence respecting independent evidence. Accordingly there is no basis on which we can interfere.
3. Did the application judge err in failing to order release of appellant’s personal goods from King George Road?
[8] The undisputed evidence was that some of the personal goods located at property belonging to the estate trustee belonged to the appellant. The estate trustee did not oppose the removal of these goods. The trial judge’s order dismissed the relief requested as being unnecessary.
[9] The appellant alleges that the estate trustee now opposes the appellant receiving his share of personal effects. In our opinion, the appropriate remedy is for the appellant to go back to the application judge with a view to resolving this matter. Any issue respecting what constitutes the personal goods should be left to the application judge or the trial of an issue. Accordingly, we would amend paragraph 3(i) of the order by adding to it: “without prejudice to the applicant to seek further direction from the application judge if necessary.”
4. Did the application judge err in failing to order the release of an expired PPSA registration?
[10] There is no error on the part of the application judge on this issue and there is no order from which the appellant can appeal.
5. Did the application judge err in awarding partial indemnity costs against Appellant?
[11] In assessing costs, the application judge noted: that the order for a trial of an issue was as a result of information advanced by the appellant for the first time in oral argument; that the proceedings were unduly complex; and that all previous offers would have been highly beneficial to the appellant as he would have obtained shares to the company 375 and ownership and control of Cedarland. The application judge accounted for Rule 57 factors, Rule 49 offers to settle and the conduct of the parties, including the conduct of the appellant who was attempting to re-litigate matters already decided.
[12] It was within the application judge’s discretion to refuse to award costs to the appellant out of the estate and his order was not plainly wrong.
Costs of the Appeal
[13] Inasmuch as the estate trustee and Grant have the same interest on this appeal, the costs of this appeal are fixed in the amount of $10,000 to be divided between the estate trustee and Grant as they see fit and are to be paid within 30 days. The appellant is to reimburse the estate in the same amount within the same 30 days.
“K.M. Weiler J.A.”
“M.J. Moldaver J.A.”
“R.G. Juriansz J.A.”