Court of Appeal for Ontario

CITATION: Bergmann v. Amis Estate, 2010 ONCA 377

DATE: 20100521

DOCKET: C51483

Before: MacPherson, Blair and Juriansz JJ.A.

BETWEEN:

Dr. Jarmila Bergmann

Plaintiff (Respondent)

and

William James McMahon in his capacity as Estate Trustee of John Charles Amis, Michelle Lawlor, Julie Cloutier and Sarah Amis

Defendants (Appellant)

Counsel:

Peter M. Callahan, for the appellant

Robert A. McNeely, for the respondent

Heard: May 20, 2010

On appeal from the judgment of Justice Peter A. Daley of the Superior Court of Justice dated November 27, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant William McMahon appeals from the order of Daley J. dated November 27, 2009, which removed him as estate trustee of the estate of John Amis and appointed Amis’ daughter Michelle Lawlor in his stead.

[2] In making his order removing the appellant as estate trustee, the motion judge made several findings strongly critical of the appellant’s performance of his duties as estate trustee, including that he demonstrated indifference towards, and acted contrary to, the interests of the beneficiaries of the estate (Amis’ three daughters), that he was incompetent in his administration of the estate, and that he did not take proper steps to preserve and protect the principal asset of the estate (Amis’ home).

[3] On appeal, the appellant challenges these findings. We are not persuaded by his submissions. In our view, the motion judge properly instructed himself on the relevant principles relating to the removal of an estate trustee. Moreover, all of his findings relating to the appellant’s omissions and misconduct in the administration of the Amis estate were open to him on the basis of the record and we see no reason to interfere with his decision.

[4] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $11,000 inclusive of disbursements and GST. These costs are payable by the appellant personally.