Court File and Parties
COURT FILE NO.: 892-2012
DATE: 2013-09-05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Scott Lough, Applicant in his capacity as a Trustee of the Maasbree Group, and in his personal capacity.
AND
Richard Van Den Hoef, Respondent in his capacity as a Co-Trustee of the Maasbree Group Trust, and in his personal capacity.
BEFORE: M. Z. Charbonneau
COUNSEL:
Paul A. Dancause Counsel, for the Applicant, Scott Lough
Gerald Langlois Counsel, for the Respondent, Richard Van Den Hoef
HEARD: August 15, 2013
Endorsement
[1] This proceeding was initiated by the applicant who sought an order compelling the respondent Richard Van Den Hoef (the trustee) to pass his accounts of the Maasbree Group Trust (the trust) for the period of September 1, 2002 to August 31, 2012. The applicant also asks that the arrangement made by the trustee and Joanne Gauthier allowing her to occupy the trust property rent-free be set aside and that payment of fair market rent retroactively to the date of initial occupation be ordered.
[2] Some of the beneficiaries of the trust are minors and the Children’s Lawyer has been appointed as their litigation guardian.
[3] The applicant came before the court on January 11, 2013 and the court granted a consent order requiring the trustee to proceed with an application to pass his accounts pursuant to the provisions of sub-rule 74.18. The order also provides that the remaining relief sought by the applicant be dealt with as part of any Notice of Objection to Accounts.
[4] The applicant is a university student presently furthering his education in Edmonton, Alberta. He admits he has little if any financial resources.
[5] The trustee has now delivered his notice of application to pass accounts and his affidavit verifying estate accounts. The application has been adjourned on consent on several occasions and cross-examinations are pending.
[6] The trustee brings this motion asking for an order compelling the applicant to pay into court the sum of $50,000.00 as security for costs pursuant to rule 56.01. He submits that he is entitled to such an order because the applicant is ordinarily resident outside Ontario and has insufficient assets to pay any costs awarded against him if he is unsuccessful.
[7] I am dismissing the motion for the following reasons:
The moving party as trustee has a duty to pass his accounts and has been ordered to do so for the totality of the trust period, namely 10 years.
The parties have already agreed that all the relief sought by the applicant in his application may proceed as objections at the hearing of the passing of accounts. As such, the application is not an independent proceeding, but part and parcel of the right of beneficiaries of the trust to call upon the trustee to give full information and prove he administered the trust prudently and honestly.
The other beneficiaries have an interest in the proceedings and their representative is actively involved in participating at cross-examination and/or taking whatever steps are needed to properly complete the passing of accounts.
The applicant’s claim is not frivolous, vexatious or void of merit because the trustee has an obligation to account. Some of the disbursements for legal fees and disbursements by Robert Van Den Hoef Sr. allegedly on behalf of the trust, raise a triable issue and certainly merit a full explanation in view of the reasons for judgment of the Court of Appeal in the litigation between Richard Van Den Hoef against Robert Van Den Hoef Jr. and Gigi Monique Lough.
Date: September 5, 2013
M. Z. Charbonneau
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Scott Lough, Applicant in his capacity as a Trustee of the Maasbree Group, and in his personal capacity.,
AND
Richard Van Den Hoef, Respondent in his capacity as a Co-Trustee of the Maasbree Group Trust, and in his personal capacity.
BEFORE: M. Z. Charbonneau
COUNSEL: Paul A. Dancause Counsel, for the Applicant, Scott Lough
Gerald Langlois Counsel, for the Respondent, Richard Van Den Hoef
ENDORSEMENT
M. Z. Charbonneau
Released: September 5, 2013