Court of Appeal for Ontario

Date: 20240510 Docket: COA-23-CV-0510

Before: Roberts, Trotter and George JJ.A.

In the Matter of: the Estate of Petrona Alberta Gray, A.K.A. Petona A. Gray, A.K.A. Petrona Albertha Gray, A.K.A. Perona Alberta Mcdonald, A.K.A. Peggy Gray, deceased

Between:

Lynden E. Gray, Leroy E. Gray, Andrew O. Gray and Kimberley A. Gray Applicants (Respondents)

And

Rowan A. Gray Respondent (Appellant)

Counsel: Joshua Vickery, for the appellant Rowan A. Gray Gourav Dara, for the respondents Lynden E. Gray, Leroy E. Gray, Andrew O. Gray and Kimberley A. Gray

Heard and released orally: May 1, 2024

On appeal from: the judgment of Justice Chris de Sa of the Superior Court of Justice, dated April 13, 2023.

Reasons for Decision

[1] The appellant and the respondents are siblings. Their mother passed away on June 3, 2019. She died with a will leaving all five children an equal share in her estate. The appellant, Rowan Gray, was named as the Executor and Estate Trustee of Mrs. Gray’s estate.

[2] According to the siblings, the respondents in this appeal, the appellant has failed to administer the estate. Specifically, he has failed to distribute the estate assets, which total just over $200,000.

[3] The respondents successfully applied to remove the appellant as Executor and Estate Trustee. However, the motion judge refused to appoint one of the respondents, Lynden Gray, to replace him as Estate Trustee, citing discord between him and the appellant. Instead, the motion judge decided that a professional executor should be appointed and sought the parties’ input on who should fulfil this role.

[4] The appellant appeals from this decision and asserts that there were a number of errors in how the motion judge decided the case and how he conducted the hearing. We are not persuaded that appellate intervention is warranted.

[5] The appellant submits that the motion judge misapprehended the high threshold for the removal of an Estate Trustee. Although the motion judge’s reasons are brief, it is clear from the hearing that the motion judge was aware of, and engaged counsel on, the applicable test. He did not, as the appellant submits, simply defer to the wishes of the majority of the beneficiaries. This was a factor that informed, but did not overwhelm, the motion judge’s decision. Similarly, from a review of the transcript of the hearing, it is clear that the judge was aware of the need to show deference to the wishes of Mrs. Gray.

[6] Overall, on the record before him, the trial judge was entitled to find that the estate could not be properly administered with the appellant as Executor and Estate Trustee. In addition to being legally sound, the motion judge’s decision represents a practical approach to a difficult dispute among family members.

[7] The appellant also submits that the motion judge erred in failing to find that some of the respondent’s claims, dating back many years, were statute-barred by s. 38 of the Trustee Act, R.S.O. 1990, c. T.23.

[8] We disagree. These were not claims within the meaning of s. 38 of the Trustee Act; they were merely factual allegations in support of the respondent’s request that the appellant be removed as Executor and Estate Trustee.

[9] The appellant submits that the motion judge erred in dealing with the application of s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, which requires corroboration in some circumstances relating to estate litigation.

[10] In our view, it is unnecessary to decide this issue because the motion judge went on to find that there was sufficient corroboration in the record before him. It was open to the motion judge to make this finding.

[11] Lastly, the appellant submits that the motion judge improperly referred to criminal law principles during the submissions of counsel. There is no merit to this submission. This was simply part of the exchange between the motion judge and counsel. It played no role in the motion judge’s findings or conclusions.

Conclusion

[12] The appeal is dismissed.

[13] The respondents are entitled to recover their costs of the appeal from the appellant, and not from the estate: Westover Estate v. Jolicouer, 2024 ONCA 81, at para. 12. The respondents contend that this appeal was an abuse of process and they are entitled to recover their costs on a substantial indemnity basis. We do not agree. This was an appeal as of right. Given the brevity of the motion judge’s reasons, the appeal was not frivolous. The respondents are entitled to costs on a partial indemnity basis in the amount of $6,758.30, inclusive of disbursements and HST.

“L.B. Roberts J.A.” “Gary Trotter J.A.” “J. George J.A.”