Court of Appeal for Ontario

Date: 2019-03-22

Docket: M50042 & M50043 (C66016 & C66072)

Judges: van Rensburg, Benotto and Harvison Young JJ.A.

In the Matter of Elias Gefen, Deceased

Between

Henia Gefen in her personal capacity and as estate trustee of the Estate of Elias Gefen Plaintiff (Appellant)

and

Arie Gaertner, Miller Canfield, Paddock and Stone, LLP, The Jewish Home for the Aged, Baycrest Hospital, Baycrest Centre for Geriatric Care, Yehuda Gefen and Harry Gefen Defendants (Respondent)

And Between

Harry Gefen Plaintiff by Counterclaim (Respondent)

and

Henia Gefen in her personal capacity and as estate trustee of the Estate of Elias Gefen, Harvey Gefen, Ashley Gefen, Dundas-Thickson Properties Ltd., 1393522 Ontario Limited and 1585708 Ontario Limited Defendants by Counterclaim (Appellants)

And Between

Harry Gefen Third Party Plaintiff (Respondent)

and

Harvey Gefen Third Party Defendant (Appellant)

Counsel

Gregory Azeff and Stephanie De Caria, for the moving party, Ronald Rutman, the Estate Trustee During Litigation of the Estate of Elias Gefen

R.B. Moldaver, Q.C., for Henia Gefen

Sapna Thakker, for Harvey Gefen

A.A. Blumenfeld, for Harry Gefen

Heard and released orally: March 14, 2019

On appeal from: the order of Justice Michael A. Penny of the Superior Court of Justice dated September 26, 2018, with reasons reported at 2018 ONSC 5698.

Reasons for Decision

[1] The estate of Elias Gefen has been the subject of ongoing litigation. The Estate Trustee During Litigation ("ETDL") was appointed by Newbould J. On a subsequent motion to vary the terms of the appointment order, Penny J. determined that the ETDL could receive payments of his fees from certain properties. Henia Gefen in her personal capacity and as estate trustee appealed.

[2] The ETDL moves to quash the appeal because it is governed by s. 28 of the Estates Act, R.S.O. 1990, c. E.21 and, as such, the appeal lies to the Divisional Court. The responding parties (appellants on appeal) say that the appointment of the ETDL by Newbould J. was not made pursuant to the Estates Act but rather, r. 75 of the Rules of Civil Procedure or the court's inherent jurisdiction.

[3] It is submitted that, because the attacks on the estate arise from an allegation of a constructive trust which does not "touch on the validity of the will", s. 28 of the Estates Act is not engaged. We do not read s. 28 so narrowly and thus, do not accept the responding parties' submissions. The allegation of constructive trust "touches" on the validity of the will or grant of administration. Applying a purposive approach to the wording of the whole of s. 28, it is clear that this litigation, which seeks to impose a constructive trust on the estate and its administration, is captured by s. 28.

[4] Newbould J.'s endorsement specifically refers to and applies the test articulated in McColl v. McColl, 2013 ONSC 5816 and Re Groner Estate, [1994] O.J. No. 140 (Gen. Div.) – two cases in which, in our view, appointment orders were made pursuant to the Estates Act. Further, we note that the wording of the appointment order tracks the language in s. 28.

[5] The order is pursuant to the Estates Act. The appeal therefore lies to the Divisional Court and the appeal before this court is quashed.

[6] The parties are to exchange and file written submissions as to costs limited to five pages – the moving parties by March 21, 2019 and the responding parties by March 28, 2019.

K. van Rensburg J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.