ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-016/13
DATE: 20140529
IN THE ESTATE OF ALLAN TAYLOR, deceased
BETWEEN:
THE CANADIAN NATIONAL INSTITUTE FOR THE BLIND, CANADIAN CANCER SOCIETY, ONTARIO DIVISION and THE SALVATION ARMY
Applicants
– and –
MARIAN VINCENT
Respondent
Danna S. Fichtenbaum, Counsel for the Applicants
HEARD: MAY 29, 2014
ENDORSEMENT: GREER J.
[1] Ms. Fichtenbaum for the Applicants, the Canadian National Institute for the Blind (“CNIB”), the Canadian Cancer Society, (“CCS”) Ontario Division and The Salvation Army (“S.A.”).
[2] The Motion before me is one of Contempt, wherein the Applicants ask the Court to have Marian Vincent held in Contempt of Court for failing to comply with the following Court Orders:
Order of Madam Justice Frank made September 18, 2013 to file her accounts as Estate Trustee of the Estate of Allan Taylor and take out an Appointment to Pass them in Court.
Order of Madam Justice Thorburn made February 25, 2014, giving the Estate Trustee, Ms. Vincent, an additional 30 days to cure her breach.
[3] Ms. Vincent did not comply with either Order. She was personally served with the Notice of Motion to hold her in Contempt of Court. She did not appear today despite the many telephone calls to her, her husband and to Gregory A. Brechin, who also received correspondence, as the solicitor who had acted for her in connection with the Estate.
[4] Rule 60.11(1) of the Rules of Civil Procedure governs Contempt Orders. Subrule 60.11(2) requires that the Motion be personally served on the Contemnor. Ms. Vincent was properly served.
Background
[5] The deceased, Allan Taylor, died on April 8, 2009, leaving a Will dated November 30, 1993. Marian Vincent, the deceased’s sister-in-law, was appointed the Estate Trustee with a Will by this Court on June 1, 2009. Under the provisions of that Will, the deceased divided the residue of his Estate into 10 equal shares. Three of those shares were left to be divided among 5 named charities as follows:
(a) The Good Shepherd Centre of Hamilton
(b) The Salvation Army of Hamilton
(c) The Canadian National Institute for the Blind of Toronto
(d) The Canadian Cancer Society, Ontario
(e) The Heart and Stroke Foundation, Ontario
[6] As set out in the Affidavit of Birute Lyons, sworn September 4, 2013, there is a long history of the CNIB trying to contact Ms. Vincent and Mr. Brechin between July 22, 2009 and November 30, 2010. No response was received for more than 16 months.
[7] Eventually, Mr. Brechin wrote to say Ms. Vincent had provided a cheque to his firm on August 28, 2012 in the amount of $106,336.55, without instructions as to its distribution. He said that the probated Estate had a value of $253,000 being $28,000 in cash plus real estate of $225,000. The net proceeds from the sale of the house was $195,481.72. A Terminal Tax Return was filed for the year of death but it appears that there may be a large amount of income tax owing to CRA.
[8] Further correspondence took place between the counsel for CNIB, Ms. Vincent and Mr. Brechin in 2013, to no avail. Ms. Vincent was warned that Contempt proceedings were going to be taken against her. She ignored that. She ignored the deadline given to her.
[9] In an Affidavit of Lucy Goytisolo, a legal assistant to the CNIB’s counsel, she sets out the numerous phonecalls made to both Ms. Vincent and her husband, Jim Vincent, about the forthcoming Contempt proceeding. Voice messages were left on their various phones. All were ignored.
The Contempt Hearing
[10] No one appeared today before me on behalf of Ms. Vincent and she did not appear in person. Counsel for the CNIB, CCS and the Army, tried to reach Mr. Brechin by telephone but he was out of his office. I heard the Motion. I found Marian Vincent to be in Contempt of 2 Court Orders as set out herein.
[11] An Order shall go holding Marian Vincent in Contempt of the Orders of Madam Justices Frank and Thorburn.
The Sanctions
[12] Under Subrule 60.11(4) I have the power to issue a Warrant for the Arrest of Ms. Vincent for her failure to appear, since she did not attend voluntarily today.
[13] Under Subrule 60.11(5), since I have found Ms. Vincent in contempt, I have the broad power to make what Order I deem “is just” under subsections (a) to (f). Since Contempt proceedings are quasi-criminal in nature, I could have sent Ms. Vincent to prison for a period of time, levied a fine against her or order her to comply with any order that I consider necessary.
[14] At the present time, I see no need to impose a prison sentence on Ms. Vincent. There is some evidence that there may be estate funds sitting in the trust account of Mr. Brechin. Counsel was unable to reach him to confirm this fact. If that is the case, I make the following Orders:
Order to go removing Marian Vincent as Estate Trustee of the Estate of Allan Taylor.
Pursuant to the provisions of the Trustee Act, all remaining assets owned by the Estate shall vest in the new appointee to take over the administration of the Estate. The 3 charities, CNIB, CCA and SA shall agree in writing to the appointment of a replacement Trustee to take Ms. Vincent’s place. The new Trustee is a Succeeding Trustee with a Will.
Order to go that the new Trustee shall not have to post a Bond to so act in completing the administration of the Estate.
All remaining Estate assets shall vest in the new Trustee pursuant to the Trustee Act and all Estate documents shall be delivered by Ms. Vincent and Mr. Brechin to the new Trustee. I am satisfied on the evidence before me that the criteria to make such a finding of contempt are such that the three-pronged test in Prescott-Russell Services for Children and Adults v. G.(N.) 2006 81792 (ON CA), 2006, 82 O.R. (3d) 686 (C.A.) as set out in para. 27, has been met. The Orders were clear and unequivocal in nature, Ms. Vincent deliberately disobeyed them, and the evidence provided showed beyond a reasonable doubt that this was the case. See also: Estate of Paul Penna, 2010 ONSC 6993.
[15] If the Court finds that the balance of the Estate assets is missing, Counsel for the Applicants shall appear before me together with Ms. Vincent and her counsel, to review the sanctions made.
Costs
[16] The Applicants shall have their Costs which I fix at $11,469.99 on a substantial indemnity basis, which include the Bill of Costs to today’s date plus an additional $800 for today’s appearance. The latter figure includes HST.
[17] These Costs shall be payable forthwith by Marian Vincent personally within 30 days of this Order.
[18] All Orders to go accordingly.
Greer J.
Released: May 29, 2014
TYPED VERSION TO FOLLOW
COURT FILE NO.: 06-016/13
DATE: 20140529
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF ALLAN TYALOR, deceased
BETWEEN:
THE CANADIAN NATIONAL INSTITUTE FOR THE BLIND, CANADIAN CANCER SOCIETY, ONTARIO DIVISION and THE SALVATION ARMY
Applicants
– and –
MARIAN VINCENT
Respondent
ENDORSEMENT
Greer J.
Released: May 29, 2014
TYPED VERSION TO FOLLOW