Court of Appeal for Ontario
Date: 2024-08-21 Docket: COA-23-CV-1366
Judges: Miller, Harvison Young and Gomery JJ.A.
In the Matter of the Estate of Robert Emanuel James, deceased
Counsel: Steven M. Bookman and Maia Rabinovitch, for the appellant, William John Franklin Bishop No one appearing for the respondents, Irma Marcia James, a.k.a. Marcia Irma James, Lois Breadner, Robert Rap James, Kathy Anne Dini James and Ivorine Harrison
Heard: July 17, 2024
On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated November 15, 2023, with reasons reported at 2023 ONSC 6432.
Gomery J.A.:
[1] William J. F. Bishop appeals the dismissal of his application for a certificate of appointment as estate trustee with a will in the estate of Robert Emanuel James. For the reasons that follow, I would dismiss the appeal.
Background
[2] On September 7, 2022, Mr. James executed a will. He left his estate to his four children and his common law spouse, Ivorine Harrison. He appointed his friend, Eleanor Strachan-Weekes, as executrix and trustee.
[3] The signing of the will was witnessed by the appellant. His name and address also appeared on the backsheet of the will, where a lawyer’s name and address would ordinarily appear. The appellant was identified as a “consultant” on the backsheet.
[4] Mr. James died seven months later, on April 8, 2023. Two days later, Ms. Strachan-Weekes signed a renunciation of her right to a certificate of appointment. Three weeks later, on April 30, 2023, each of Mr. James’ children signed a consent to the appellant’s appointment as estate trustee and a waiver of the standard requirement that he post security. Ms. Harrison signed the same consent on May 2, 2023.
[5] In July 2023, the appellant filed an application for a certificate of appointment and an order dispensing of the requirement that security be posted under s. 35 of the Estates Act, R.S.O. 1990, c. E.21. He attached Ms. Strachan-Weekes’ renunciation and the beneficiaries’ signed consents. He estimated that the value of Mr. James’ estate exceeded $1,300,000. He did not attach an affidavit describing steps taken to ascertain whether the estate had any debts and undertaking to ensure that they were paid.
The Application Judge’s September 2023 Direction
[6] On September 20, 2023, the application judge issued an endorsement (the “September Direction”) stating that the application had been referred to him by the registrar, pursuant to r. 74.14(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to consider whether it raised an issue requiring determination by a judge. The application judge concluded that it did. He held that he had to determine whether he should exercise the court’s inherent jurisdiction to refuse the appellant’s application, on the basis that the appellant’s appointment could bring the administration of justice into disrepute.
[7] The specific concern that the application judge identified was that the appellant might be engaged in the unlicensed practice of law. It was a matter of public record that the appellant had been a member of the Law Society of Ontario and had practiced as a lawyer in Ontario for 40 years. However, his license was revoked in 2013 after he was found to have participated or knowingly assisted in fourteen fraudulent mortgage transactions over three-and-a-half-year period: Law Society of Upper Canada v. William John Franklin Bishop, 2012 ONLSHP 87, aff’d 2014 ONLSTA 19, aff’d 2014 ONSC 5057 (Div. Ct.). The application judge noted that the appellant had, on the face of the application, been involved in the preparation of Mr. James’ will and that steps had been taken rapidly after Mr. James’ death to have the appellant appointed as executor, even though someone else was appointed to this role in the will.
[8] In the application judge’s view, given the circumstances in which the appellant’s license was revoked, he was “no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness”. He invited the appellant, or any other person who would be affected by the court’s rejection of his application, to bring a motion for directions, to be heard on a date to be set by the registrar. If such a motion was brought, no decision would be made on the application until the motion had been adjudicated. If no motion was brought, the application would be finally determined by the application judge without further notice.
The Response to the September Direction
[9] On October 17, 2023, a notice of motion was filed by Mr. James’ heirs asking the application judge to appoint the appellant as estate trustee. The stated grounds for the motion were that:
- The appellant was a longtime friend, confidant and advisor of Mr. James, on whom Mr. James relied “for many personal, professional and legal matters”;
- Mr. James had never lost confidence in the appellant, despite his disbarment;
- After thoughtful and thorough discussion, the heirs had concluded that the appellant was “the most trusted and qualified person to continue his work as executor of Mr. James’ estate”, as he had shown “integrity, competence, and thoroughness with his dealings with the heirs and financial institutions of the deceased and should be allowed to continue this work to the benefit of heirs and the process of probate and affairs of the estate”.
[10] The beneficiaries did not file any affidavit in support of their notice of motion. The appellant did not bring his own motion or file any evidence.
The Application Judge’s November 2023 Decision
[11] In his reasons for refusing the appointment, the application judge concluded that he had the inherent jurisdiction to refuse to appoint the appellant as estate trustee and that it was appropriate to do so in the circumstances.
[12] The application judge noted the court will generally defer to a testator’s nomination of a trustee absent evidence that the appointee would act contrary to the interests of the estate or its beneficiaries. The appellant was not appointed in Mr. James’ will, but the beneficiaries supported his appointment.
[13] The application judge also acknowledged that the appellant’s disbarment did not automatically disqualify him from acting as estate trustee. Although the Divisional Court upheld the Law Society of Ontario’s decision to remove the appellant’s license, it noted that there was no real concern that he would repeat the misconduct for which he was sanctioned.
[14] The application judge remained concerned, however, that the appellant could be engaged in the unauthorized practice of law:
[T]he appearance of his name on the backsheet of the will, his presence as a witness to the will, the renunciation by the designated estate trustee just two days after the death of Mr. James, the consent of beneficiaries – within a matter of weeks after Mr. James died – to Mr. Bishop’s application, and the statement by the heirs that after his disbarment, “Mr. Bishop continued to advise Mr. James and the family members of Mr. James on important matters” are factors that certainly raise questions about the nature and extent of his involvement, and relationship, with Mr. James and members of his family.
[15] The application judge held that it would be “for others to decide whether aspects of Mr. Bishop’s involvement with the settling of Mr. James’ will or the provision of advice to him or his heirs amount to the unauthorised practice of law, contrary to the Law Society Act.” He also reiterated that nothing prohibited a disbarred lawyer from acting as an estate trustee.
[16] The application judge nonetheless concluded that the application should be denied because no evidence had been tendered that allayed his concern that the appellant might be engaged in prohibited conduct. In the circumstances, he held that the court could not “simply allow Mr. Bishop’s application because that is what the heirs want”. Given the “ample grounds” to believe that the appellant might have engaged in the practice of law despite losing the privilege to do so, the application judge concluded that granting the appointment ran contrary to the court’s obligation to promote confidence in the administration of justice and dismissed the application.
Grounds of Appeal
[17] The appellant alleges that the application judge made four errors of law or mixed fact and law. In my view, the grounds of appeal can be addressed by answering the following questions:
- Did the application judge have the discretion to refuse the appellant’s appointment as an estate trustee even though the application was unopposed?
- If so, did the application judge err in exercising this discretion?
- Does the decision give rise to a reasonable apprehension of bias?
Motion to Adduce Fresh Evidence
[18] The appellant seeks to introduce fresh evidence on the appeal, in the form of an affidavit sworn by the appellant on June 25, 2024. I would dismiss this motion.
[19] This court may admit fresh evidence in a civil appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under the traditional test in Palmer v. The Queen, [1980] 1 S.C.R. 759, 1979 SCC 8, at p. 775, reaffirmed in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at paras. 27 and 34, a party seeking to adduce fresh evidence in a civil appeal must show that:
a. The proposed evidence is credible, in that it is reasonably capable of belief; b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial; c. The proposed evidence could not have been, through due diligence, adduced at trial; and, d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial.
[20] This court has adopted a more streamlined three-part test in cases such as Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), 1994 ONCA 8711, at para. 9; St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8; and Shannon v. Hrabovsky, 2024 ONCA 120, at para. 27. As noted in Re Chiang, 2009 ONCA 3, 93 O.R. (3d) 483, at para. 77, although the two tests are similar, the more streamlined test arguably imposes a greater onus on the moving party to show that the evidence would have affected the result at trial.
[21] The fresh evidence proposed by the appellant does not meet either formulation of the test.
[22] Much of the appellant’s June 2024 affidavit consists of evidence that he could have adduced in response to the application judge’s September Direction. He states that he has been granted certificates of appointment with a will for two estates, one in 2017 and the other in 2019, and that no complaints have been made about his administration. He describes his relationship with Mr. James over the years and the circumstances giving rise to his application. All this evidence was obviously in the appellant’s possession in September 2023. As he himself acknowledges in the affidavit, he made a conscious decision not to tender any evidence in response to the application judge’s September Direction.
[23] The appellant points out that the due diligence requirement is not rigid; it should be considered in the practical context of the case, and relaxed where appropriate: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 60. He argues that the requirement should not be stringently applied here, because the application judge did not indicate exactly what kind of evidence should be filed in response to his September Direction and gave the appellant and beneficiaries only 28 days to respond.
[24] The context of this motion does not, in my view, militate for a relaxation of the due diligence requirement. The application judge’s concern about the appellant’s qualification to act as an estate trustee was clearly laid out in his September Direction. He was concerned that the appellant had been engaged in the unlicensed practice of law and he explained the basis for his concern. The application judge was not required to foresee or spell out exactly what kind of evidence the appellant or other interested parties might advance to address that concern.
[25] The time given to respond to the direction was sufficient. In the June 2024 affidavit that is the subject of the fresh evidence motion, the appellant acknowledges that he had an opportunity to consult with counsel and meet with the beneficiaries. His failure to file an affidavit was not due to a lack of time but rather to his decision that it was more persuasive for the beneficiaries to respond.
[26] In another part of his June 2024 affidavit, the appellant questions why his application was “flagged for review” by the application judge and suggests that the application judge dismissed it to further a personal agenda. This is conjecture. It is unsupported by any allegations of material fact.
[27] Finally, the June 2024 affidavit describes the appellant’s disappointment and dismay at the dismissal of his application. He states that he feels as though he is “again being punished” for participation in fraudulent transactions that took place over ten years ago. I would not characterize the denial of the appellant’s application as punishment; no one has the right to an appointment as estate trustee. In any event, the appellant’s feelings are irrelevant to the legal issues in this appeal.
Analysis of the issues on appeal
(1) Did the application judge have the discretion to refuse the appellant’s appointment as an estate trustee even though the application was unopposed?
[28] Whether a Superior Court judge has discretion, in the exercise of the court’s inherent jurisdiction, to refuse an unopposed application for a certificate of appointment as estate trustee is a question of law. It is therefore reviewable on a correctness standard.
[29] In Ontario, the Superior Court of Justice is responsible for granting probate or letters of administration pursuant to s. 7(1) of the Estates Act. This jurisdiction includes the determination of applications for a certificate of appointment of estate trustees with or without a will. Estate trustees play a critical role in the administration of estates. Using the authority conferred upon them by virtue of the court’s appointment, they step into the shoes of the deceased, dealing with their property, taking legal action to enforce the estate’s rights, determining which debts should be paid, and distributing the estate’s assets based on their interpretation of the testator’s instructions.
[30] In Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), 2004 ONSC 34890, at paras. 22 to 24, Cullity J. observed that the Superior Court’s jurisdiction over wills and estates pursuant to the Estates Act and rr. 74 and 75 of the Rules of Civil Procedure was transferred to it from the former Surrogate Courts. The role of those Courts was, to some extent, inquisitorial:
The role of the court is not simply to adjudicate upon a dispute between parties. The judgment of the court granting probate does not bind only the parties to the proceeding. Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons.
[31] This court endorsed this view of the court’s inquisitorial role in estates proceedings in Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at paras. 67-68, leave to appeal refused, [2016] S.C.C.A. No. 207. The court “has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions”: Neuberger, at para. 68. For that reason, an application for probate can be refused if there is no evidence to support it, and even if the estate’s beneficiaries support it: Otis, at paras. 24-26; McLaughlin v. McLaughlin, 2015 ONSC 3491, 11 E.T.R. (4th) 183, at paras. 31-36.
[32] The court’s supervisory role with respect to estate proceedings is recognized in rr. 74 and 75. Notably, pursuant to r. 75.06(3), a court may direct the issues to be decided in a contentious estate proceeding, the parties to be involved, and the procedure to be followed. A party seeking directions for the purpose of challenging a will or the appointment of an estate trustee must provide the court with evidence satisfying at least a minimal evidentiary threshold in support of the order ultimately sought: Neuberger, at para. 88; Seepa v. Seepa, 2017 ONSC 5368, at para. 27; Martin v. Martin, 2018 ONSC 1840, 38 E.T.R. (4th) 161, at paras. 30, 32.
[33] Section 5 of the Trustee Act, R.S.O. 1990, c. T.23, empowers the court to order the appointment of a new trustee “in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee”. Even in the absence of the Trustee Act, the Superior Court of Justice has an inherent power to remove a trustee where circumstances require it: Gonder v. Gonder Estate, 2010 ONCA 172, 54 E.T.R. (3d) 193, at para. 26.
[34] In my view, this inherent jurisdiction also empowers a Superior Court judge to refuse to grant an application to appoint a trustee. It would be illogical if the court had the power to terminate a trustee’s appointment in appropriate circumstances but did not have the power to prevent an inappropriate appointment.
[35] The appellant in fact concedes that the Superior Court may refuse to grant an application for a certificate of appointment with a will in appropriate circumstances. He contends, however, that this discretion is limited by s. 29 of the Estates Act and that, in the circumstances of this case, the application judge was required to grant the application.
[36] Section 29(1) lists persons who may be appointed by the court to administer the property of a deceased, where the deceased died intestate, or the executor named in the will refuses to prove it. Those persons include the deceased’s spouse or common law partner at the time of death; the deceased’s next of kin; or both.
[37] Pursuant to s. 29(2) the persons listed in subsection (1) may request that another person be appointed if the executor appointed in the will declines to act:
Appointment at request of parties interested (2) Subject to subsection (3), where a person dies … leaving a will affecting property but without … an executor willing and competent to take probate and the persons entitled to administration, or a majority of such of them as are resident in Ontario, request that another person be appointed to be the administrator of the property of the deceased, or of any part of it, the right that such persons possessed to have administration granted to them in respect of it belongs to such person.
[38] Appointment under subsections (1) or (2) is subject to s. 29(3), which states:
General power as to appointment of administrator under special circumstances (3) Where a person dies … leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate … and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit.
[39] The appellant contends that s. 29(2) compelled the application judge to grant his application as it was supported by persons entitled to apply for a certificate of appointment under s. 29(1) and there was no other competing application.
[40] I do not accept this argument.
[41] The language of s. 29 does not compel a court to grant a certificate of appointment to any particular applicant. On the contrary, s. 29(1) states that the administration of the property of the deceased “may” (as opposed to “shall”) be committed by the Superior Court of Justice to the persons indicated “as in the discretion of the court seems best”. Subsection (2) gives those entitled to apply for administration under subsection (1) the right to request the appointment of another person in their stead, but this delegate’s “right” is not greater than those enjoyed by the requesting parties. The delegate may apply for a certificate of appointment as estate trustee, but the court has the discretion to deny the application. Both subsections (1) and (2) are expressly made subject to subsection (3), which likewise affirms that, even when the court concludes that a trustee must be appointed due to the insolvency of the estate or other special circumstances, the court retains the discretion to “appoint any such person as it thinks fit”.
[42] The equitable jurisdiction over the appointment and removal of trustees furthermore runs in parallel with any statutory powers to remove or appoint and is not supplanted absent clear and unambiguous language to that effect: Gonder, at paras. 40-46. The discretion flowing from this jurisdiction reflects the Superior Court’s parens patriae jurisdiction and has been variously described as “overriding” (Public Guardian and Trustee v. Duggan (1998), 165 D.L.R. (4th) 713 (Ont. S.C.), 1998 ONSC 14929, at para. 22, rev’d on other grounds, 1999 ONCA 1388, 175 D.L.R. (4th) 466 (Ont. C.A.)); unfettered or unconstrained (Mohammed v. Heera (2008), 43 E.T.R. (3d) 273 (Ont. S.C.)); and “unqualified” (Re Lagrandeur Estate, 2021 ONSC 3447, at para. 47).
[43] This discretion, in my view, may be exercised even if an application is unopposed, due to the inquisitorial nature of the court’s role in estate proceedings, and its gatekeeping and oversight functions with respect to the appointment of trustees.
[44] The appellant relies on Petrovskaya v. Morelli, 2013 ONSC 2659, 88 E.T.R. (3d) 302, in which Morgan J. granted an application by the widow of a deceased person despite an objection. At para. 24, he held that s. 29 of the Estates Act “dictates that in the absence of any more appropriate choice, the Applicant shall be appointed”. This statement must be viewed in the context of that case, where the court recognized the urgent need to appoint someone to administer the estate at issue. It does not stand for the proposition that a court must grant an application for a certificate as estate trustee in every instance where no other party applies.
[45] There is no suggestion of special circumstances that would require the immediate appointment of an estate trustee in this case. Even if there were special circumstances as contemplated in s. 29(3), they would be a factor to be weighed rather than an imperative requiring the appellant’s application to be granted.
[46] I accordingly conclude that, as a Superior Court judge exercising an equitable jurisdiction in an estate proceeding, the application judge had an inherent discretion to dismiss the appellant’s application, even though the beneficiaries supported it and there were no competing applications.
(2) Did the application judge err in exercising this discretion?
[47] A trial judge’s exercise of their inherent discretion gives rise to a determination of mixed fact and law. This determination is entitled to deference and will not be reversed absent an error in principle or a palpable and overriding error. No such error has been identified here.
[48] In Gonder, at para. 26, this court affirmed the breadth of the Superior Court’s discretion in removing a trustee, citing this passage from Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), at pp. 386-87:
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries. Probably it is not possible to lay down any more definite rule in a matter so essentially dependent on the details often of great nicety.
[49] The potential range of considerations that may be relevant to a judge’s determination of whether a person applying to be an estate trustee is equally broad. Although I agree that the welfare of the estate’s beneficiaries is generally the main focus, it is not the only relevant factor.
[50] The application judge identified the relevant factors in this case as the wishes of Mr. James’ heirs, on the one hand, and “the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law” on the other. Although the application judge acknowledged that a disbarred lawyer is not precluded from acting as an estate trustee, he noted that the appellant had not offered any evidence to allay the court’s concern that he might be engaged in the unlicensed practice of law. Having weighed the competing considerations, he concluded that the application should be dismissed.
[51] In my view, the application judge’s initial concerns were legitimate given the appellant’s professional history, his apparent involvement in executing Mr. James’ will despite the revocation of his law license, the resignation of the named executor two days after Mr. James’ death, and the steps taken by the appellant a few weeks later to secure the beneficiaries’ consent to his application to be named as estate trustee. These concerns were unallayed when the appellant failed to respond to the September Direction, for example with evidence explaining his role in Mr. James’ estate planning and management. In these circumstances, it was reasonable for the application judge to conclude that public confidence in the administration of justice would be undermined if he were appointed as estate trustee, giving him full authority to act on the estate’s behalf.
[52] The appellant contends that the application judge committed an error of principle by focusing unduly on the appellant’s professional history. Cases such as Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74, 2008 ONSC 45548, at paras. 97-113; St. Joseph’s Health Centre v. Dzwiekowski, 2007 ONSC 51347, at para. 28; and Woolnough v. Dare, 2016 ONSC 4013, 22 E.T.R. (4th) 160, aff’d 2017 ONCA 274, establish that an estate trustee will not be removed unless removal is necessary to avoid injuring the interests of the estate or the welfare of its beneficiaries. I agree with the application judge that this caselaw is distinguishable because it involves proceedings to remove an estate trustee nominated by a testator in their will. The appellant was not nominated by Mr. James in his will. The application judge did not have to be concerned that dismissing the application would be contrary to Mr. James’ wishes.
[53] Beyond this, I reject the appellant’s argument that the application judge’s focus was the appellant’s disbarment. His concern was not based primarily on the revocation of the appellant’s law license but on his activities directly in connection with Mr. James’ estate.
[54] The appellant contends that the application judge should have given more weight to evidence that he would fulfill his duties as an executor. This included the stated grounds in the beneficiaries’ October 2023 notice of motion for directions supporting the application, and the finding in the license revocation proceedings that the appellant was unlikely to repeat the misconduct for which he was disbarred.
[55] The beneficiaries’ notice of motion was unsupported by an affidavit. There was accordingly no evidence, as such, before the application judge that the appellant was a trusted family advisor or that Mr. James continued to have confidence in him after his law license was revoked. The application judge nonetheless conceded that the appellant appeared to enjoy the confidence of Mr. James’ beneficiaries. He also acknowledged a lack of evidence that the appellant would act contrary to the interests of the estate or the beneficiaries. In his view, however, neither of these considerations outweighed the damage to the rule of law and public loss of confidence that the justice system could suffer if the application were granted.
[56] Finally, the appellant argues that the application judge erred because there was no evidence in the application suggesting that the appellant might not be an appropriate or fit estate trustee. The revocation of the appellant’s law license was not mentioned in the application and there was nothing to indicate that he would not fulfill his duties as an estate trustee.
[57] A court will rarely have a basis for a serious concern about an unopposed application for a certificate of appointment. Here, however, the application judge identified a legitimate concern about the appellant’s potential unlicensed practice of law and the impact on the public perception of the administration of justice if he were appointed as estate trustee. This concern was grounded in the public record of the appellant’s disbarment and information in the application record suggesting that the appellant may have taken on a lawyer’s role in the planning and administration of Mr. James’ estate.
[58] Given the breadth of the discretion afforded the application judge, it was open to him to identify and weigh the competing considerations as he did. The court should defer to his conclusion.
(3) Does the dismissal of the application give rise to a reasonable apprehension of bias?
[59] Judges are presumed to act with integrity and impartiality: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 19. Impartiality involves “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions”: R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484, at para. 104. A party seeking to rebut the presumption that a judge has acted impartially must “present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the [court’s] reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it”: Teskey, at para. 21.
[60] The appellant has not rebutted the presumption of impartiality in this case.
[61] The appellant advances two arguments. First, he suggests that the referral of his application to the application judge is inherently suspicious. Second, he argues that the application judge demonstrated a predisposition to dismiss the application in his September Direction.
[62] Rule 74.14(4) provides that the registrar “shall refer an application for a certificate of appointment of estate trustee to a judge for determination if, in the registrar’s opinion, the application raises an issue that requires determination by a judge”. The application judge did not identify the basis for the referral in his September Direction or in his endorsement dismissing the application. The appellant points out that his disbarment was not disclosed on the application record and asks the court to infer that it “was identified by the Registrar and the Court as requiring review by nature of the close-knit Kingston Bar and the fact that it is well-known in the Kingston community that the Appellant is a disbarred lawyer”.
[63] There is, however, another obvious explanation for the registrar’s referral in this case: the appellant was seeking an order that only a judge could grant.
[64] Under r. 74.14(1)(a), the registrar may issue a certificate of appointment if satisfied that the application for the certificate contains the information, evidence and supporting documentation required by the Rules and any Act. The registrar may otherwise only issue a certificate of appointment “if directed to do so by a judge”: r. 74.14(1)(b).
[65] Pursuant to r. 74.04(1), an application for a certificate of appointment as estate trustee must include any security required under the Estates Act. Section 35 of the Estates Act provides that,
[e]xcept where otherwise provided by law, every person to whom a grant of administration, including administration with the will annexed, is committed shall give a bond to the judge of the court by which the grant is made, to enure for the benefit of the Accountant of the Superior Court of Justice, with a surety or sureties as may be required by the judge, conditioned for the due collecting, getting in, administering and accounting for the property of the deceased”.
[66] Section 37(1) sets the bond at “double the amount under which the property of the deceased has been sworn”.
[67] Section 37(2) empowers a judge to reduce the amount of or dispense with the bond requirement altogether. An applicant for a certificate of estate trustee may also seek waiver of the bond requirement on consent, under r. 74.11(5). To do so, however, they must comply with r. 74.11(6) by filing an affidavit setting out, among other things, the deceased’s debts, the arrangements made for the estate to pay them, and what security the applicant proposes to put in place to protect any creditors.
[68] In his application, the appellant did not include proof that he had obtained a bond as required under s. 35 of the Estates Act. He sought to be relieved of the bond requirement on consent but did not comply with r. 74.11(6). His affidavit was silent as to whether Mr. James’ had any unpaid debts when he died and, if so, what the appellant proposed to do to pay them and otherwise protect their interests.
[69] The registrar therefore had no choice but to refer the appellant’s application to a judge. The registrar could not issue the certificate without a judge’s order since the application included neither evidence that the applicant had fulfilled the bond requirement, nor the information required to waive the bond requirement on consent. Even if the appellant’s affidavit had complied with r. 74.11(6), the application would still have had to be referred to a judge, because only a judge can waive the bond requirement under s. 37(2).
[70] The appellant points out that the security requirement was not mentioned in the application judge’s direction or decision. I infer that this became a secondary consideration when the application judge focused on what he considered to be a greater concern. The point is that a person reasonably informed about the criteria for granting the order sought by the appellant would not conclude that the registrar’s referral of his application to the application judge reflected anything other than the registrar’s understanding of and compliance with applicable statutes and the Rules.
[71] The appellant’s second argument is that the application judge’s reasons show he predetermined that the appellant was not fit to act as an estate trustee. He relies on this passage from the September Direction:
The fact is that Mr. Bishop is an individual who has been adjudicated to have participated, or knowingly assisted, in dishonest and fraudulent conduct. His licence to practise law has been revoked. As a result, he is no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness.
[72] In my view, it was legitimate for the application judge to bring a higher level of scrutiny to bear on the application given the appellant’s professional history. I do not find that a reasonable person, reading these comments, would conclude that the application judge had already made up his mind to dismiss the application.
[73] The application judge’s reasons indicate that he considered and weighed the factors for and against granting the appointment. He referred to and applied the correct legal principles and fairly considered the record. His reasons do not read as an ex post facto justification for a decision that he made prior to issuing the direction. They do not demonstrate or suggest bias.
[74] I would make one further observation. The application judge could not have closed his mind to evidence and argument that was never presented to him. In his September Direction, the application judge invited the appellant and Mr. James’ beneficiaries to persuade him that the appellant was not engaged in the unlicensed practice of law or otherwise engaged in conduct that would make his appointment as estate trustee inappropriate. The appellant declined to respond. The beneficiaries filed a notice of motion, without any supporting evidence, the stated grounds for which, to some extent, supported the inference that Mr. James had provided legal services to Mr. James and his family after his disbarment.
Disposition
[75] I would accordingly dismiss the appeal. No costs were sought by the appellant against the estate, and none should be awarded.
Released: August 21, 2024 “B.W.M.” “S. Gomery J.A.” “I agree. B.W. Miller J.A.” “I agree. A. Harvison Young J.A.”
