Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231212 DOCKET: COA-23-CV-0307

Roberts, Paciocco and Monahan JJ.A.

BETWEEN

Sandra MacDonald-Lamarche* and Cynthia MacDougall Applicants (Appellant*)

and

Donna Ferguson and Joan McCosham Respondents (Respondents)

Counsel: Allan Rouben, for the appellant Kathleen McDormand, for the respondent

Heard and released orally: December 11, 2023

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated July 28, 2022.

Reasons for Decision

[1] The appellant and co-applicant, Sandra MacDonald-Lamarche, appeals the July 28, 2022 dismissal of an application (the “Subject Application”) regarding the estate of her late mother Alice MacDonald (“Mrs. MacDonald”), who passed away on March 25, 2016. (The co-applicant, Cynthia MacDougall, is not a party to the appeal.)

[2] The respondents, who are also daughters of Mrs. MacDonald and the appellant’s sisters, are the trustees and executors of Mrs. MacDonald’s estate.

[3] The Subject Application, which seeks an accounting from the respondents with respect to certain transfers or withdrawals from Mrs. MacDonald’s accounts that occurred in 2011 or 2012 (the “Unexplained Transactions”), is the fourth proceeding commenced by these parties concerning their late mother’s estate.

[4] The application judge dismissed the Subject Application on two grounds.

[5] First, he found that further litigation between these parties regarding Mrs. MacDonald’s estate was foreclosed by a 2019 order, issued on consent (the “2019 Consent Order”), which provided in relevant part that “this matter is concluded and the estate may now be distributed… .” The application judge found that the term “this matter” encompassed all aspects of the estate litigation between the parties, including the Unexplained Transactions.

[6] Second, the application judge found that further litigation over the estate would be an abuse of process for a number of reasons, including the fact that the appellant’s concerns over the Unexplained Transactions had already been raised in earlier litigation between the parties.

[7] The application judge’s order is entitled to deference and is only reversible on the basis of a palpable and overriding error.

[8] The appellant has failed to identify any such error. Instead, she simply invites this court to ascribe a different interpretation to the term “this matter” in the 2019 Consent Order than that adopted by the application judge. However, the application judge’s interpretation of this term in the 2019 Consent Order was fully supported on the record, particularly the fact that the appellant had received an expert report on the Unexplained Transactions prior to agreeing to the 2019 Consent Order. As the application judge held, it would “render the clear words and meaning of the [2019 Consent Order] pointless if the applicants were to now be permitted to open up a new front in their ongoing sororal warfare with the respondents… .”

[9] Similarly, we do not accept the appellant’s submission that the abuse of process determination was merely an add-on. The application judge was not required to summarize the jurisprudence on abuse of process. He properly applied the relevant legal principles, and his factual findings fully support his conclusion that this application was an abuse of process.

[10] In short, we see no reversible error in the findings and order of the application judge, particularly his conclusion that “enough is enough” and that “the litigation over the estate of Mrs. MacDonald should end now”.

[11] The appeal is dismissed. The parties have agreed that costs of the appeal should be fixed at $25,000, payable to the successful party. We therefore order the appellant to pay $25,000 in costs, on an all-inclusive basis, to the respondents.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“P.J. Monahan J.A.”