[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Luck v. Hudson Re: Estate of Albert Luck, 2020 ONSC 3811
DIVISIONAL COURT FILE NO.: DC-1111/18
DATE: 20200609
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
L.A. Pattillo, Lederer and Penny JJ.
BETWEEN:
STEVEN LUCK
Appellant
– and –
MARY LOU HUDSON, WENDY LITTLEJOHNS, ALAN ALBERT LUCK, BRANDELLE MARGARET LUCK, the ESTATE TRUSTEES OF THE ESTATE OF ALBERT LUCK, DECEASED
Respondents
COUNSEL:
John Annen, for the Appellant
Phillipa Goddard, for the Respondent, Mary Lou Hudson
Jesse Porter for the Respondents, Wendy Littlejohns, Alan Albert Luck, Brandelle, Margaret Luck
HEARD at Toronto (videoconference): June 9, 2020
Oral Reasons for Judgment
Lederer J. (Orally)
[1] The appellant, Steven Luck seeks to appeal the order of Justice D. Salmers made on June 19, 2018.
[2] That order made two substantive determinations.
[3] First monies paid into court to the credit of the Estate of Albert Luck, the father of Steven Luck arising from the sale of a home owned jointly by Albert Luck and his wife Mary Lou Hudson be paid out of court and distributed pursuant to the terms of the Will of Albert Luck.
[4] Second, that Mary Lou Hudson be removed as a trustee of the Estate of Albert Luck retroactive to the date of the issuance of the Certificate of Appointment making her a trustee.
[5] The orders made are interlocutory. This being so, if the appeal is to be heard by this court, leave is required (Courts of Justice Act s. 19 (1) (b)). We say this notwithstanding counsel’s reliance on s. 10 of the Estates Act. This section does not detract from the requirement that leave be granted as found in the Courts of Justice Act. Leave was not sought prior to the hearing today but was requested as part of this proceeding. Having heard the appellant and respondents as to leave and the appellant as to the merits of the appeal (the respondents were not called on) we grant leave but dismiss the appeal in its entirety.
[6] By this appeal, Steven Luck seeks to have the court hear matters not heard by the motion judge. He seeks directions with respect to the administration of the estate and an accounting.
[7] The motion brought on behalf of Steven Luck requesting directions was not properly before Mr. Justice Salmers. It had not been properly served and had been filed in the wrong courthouse. The court was well within its authority and jurisdiction to refuse to deal with the issues it raised. On that ground alone we would dismiss the appeal insofar as it continues the request for directions.
[8] Moreover, at its root the true purpose of that motion was to raise concerns as to the validity of the Will. Estate trustees have been properly appointed. No objection has been made to their appointment or to the Will. The issues of the validity of the Will and the appointment were not before Justice Salmers and are not before this court. Steven Luck has yet to register any formal objection, either by notice of objection, motion or application to either the validity of the Will or the appointment of the Estate Trustees.
[9] What has become apparent is that Steven Luck wants to contest the Will in order to overturn the distribution of the funds held in court. He wishes those funds to remain available as security for the enforcement of a counterclaim he has made in response to an action commenced by his father (prior to his death) against Steven Luck. The substance of the counterclaim has no connection to the Will or estate of Albert Luck. Among other things, the counterclaim seeks:
(1) $10,000 allegedly offered as an inducement to Steven Luck to sell his home in Nanaimo, British Columbia;
(2) $27,000 allegedly a loan made by Steven Luck to Albert Luck to assist in his purchase of a cottage;
(3) $15,000 allegedly owed for work done to winterize that cottage;
(4) set off, presumably of any amount found in the main action to be owed by Steven Luck to his father, in respect of the sale by Albert Luck of a motorboat and skidoo owned by Steven Luck;
(5) an accounting with respect to the inheritance to be received by Steven Luck from the estate of his grandfather, George Arthur Luck.
[10] The effect of this is that Steven Luck is requesting security in advance of any judgement being made in his favour. He wants a Mareva injunction.
[11] None of the prerequisites for such an order have been shown to be present. There is no demonstration that Steven Luck has a strong prima facie case in respect of any of the claims he makes in the counterclaim. To the contrary, Justice Salmers observed that many of the claims in Steven Luck’s counterclaim would appear to have been barred by the Limitations Act, 2002. He went on to observe that there was no evidence of need for the proposed funds to be held on account of other estate assets being insufficient to make any payments required by a successful counterclaim.
[12] Steven Luck wants the estate trustees to pass the accounts of the estate. The order made by Mr. Justice Salmers was clear:
THIS COURT ORDERS Steven Luck retains the right to request a passing of the accounts from the Estate Trustees…
[13] This being so, there is no purpose to an appeal requesting such an accounting.
[14] The Notice of Appeal makes no reference to any concern with the order that Mary Lou Hudson be removed as an Estate Trustee. As it is, at the hearing before Mr. Justice Salmers, counsel for Steven Luck was asked but made no objection to the court hearing submissions as to this request. Accordingly, we need to make no comment with respect to that aspect of the order made by Mr. Justice Salmers.
[15] Leave is granted. The appeal is dismissed
[16] Costs to the respondents Wendy Littlejohns, Alan Albert Luck and Brandelle Margaret Luck in the amount of $15,000 and to the respondent, Mary Lou Hudson in the amount of $10,000 both to be paid by the appellant Steven Luck. The payment of these costs by Steven Luck to be deferred until payment out of the intestate portion of the Estate of Albert Luck.
___________________________ Lederer J.
I agree
L.A. Pattillo J.
I agree
Penny J.
Date of Oral Reasons for Judgment: June 9, 2020
Date of Release: July 10, 2020
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
L.A. Pattillo, Lederer and Penny JJ.
BETWEEN:
STEVEN LUCK Appellant
– and –
MARY LOU HUDSON, WENDY LITTLEJOHNS, ALAN ALBERT LUCK, BRANDELLE MARGARET LUCK, the ESTATE TRUSTEES OF THE ESTATE OF ALBERT LUCK, DECEASED Respondents
ORAL REASONS FOR JUDGMENT
Lederer J.
Date of Oral Reasons for Judgment: June 9, 2020
Date of Release: July 10, 2020