Court File and Parties

Court File No.: 05-12/12
Date: 20121206
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Geoffrey Griffith Lund, Applicant

AND:
Nancy Katherine Rossiter and Gary Rossiter, Respondents

BEFORE: Pollak J.

COUNSEL:
David M. Smith and Holly LeValliant , for the Applicant

Jonathan L. Rosenstein , for the Respondents

HEARD: November 27, 2012

ENDORSEMENT

[ 1 ] This Application dated February 13, 2012, was brought more than two years after:

(a) November 22, 2008 - the date of the Decedent’s death;

(b) January 7, 2009 - the date that the Respondent Nancy Rossiter (“Nancy”) told the Applicant Geoffrey Lund (“Geoffrey”) that she would distribute only his share of the joint assets; and

(c) January 11, 2010 - the date that Nancy provided the Distribution Accounting to Geoffrey.

[ 2 ] Geoffrey moves for partial summary judgment of the Application, requesting an order:

“determining that any claims against the Respondents in respect of their handling of “assets from the deceased [received] by rights of survivorship or as designated beneficiary” are barred by operation of the Limitations Act , 2002 or similar statute.”

[ 3 ] In the Application, the relief requested is:

(a) a declaration that the Will and Codicils are invalid as a result of undue influence;

(b) a declaration that the Joint Assets were, as a matter of law, Estate Assets.

[ 4 ] There is no relief requested against the Respondents.

[ 5 ] It is, however, submitted by Nancy and the Respondent Gary Rossiter (“Gary”) that the Application does request such relief implicitly and that it follows that the following is also implicitly requested by Geoffrey:

(a) a declaration that Nancy breached her fiduciary duty as trustee and/or executor when she paid the certain of the Joint Assets to herself, and

(b) an order requiring Nancy to remedy that breach.

[ 6 ] In Geoffrey’s Factum he does not address this issue, but he submitted at the hearing of this motion that he has not taken an Action seeking relief against the Respondents, but has commenced an Application seeking declarations. The Respondents argue that the order requested in this motion is appropriate in light of the relief requested in the Application. The Court has concerns with respect to the appropriateness of this motion in this case and wishes to give the parties the opportunity to respond to such concerns. The Court has therefore arranged for an appearance by the parties for January 22, 2013 for one hour. The parties are asked to provide written confirmation to my assistant Ms. Lyon-McIndoo (416-327-5284) by 3:00 p.m. on Wednesday December 12, 2012, if they are going to appear to respond to the Court’s concerns.

Pollak J.

Date: December 6, 2012