ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 64/14 (Woodstock)

DATE: 2014/07/25

IN THE ESTATE OF NORMA BAER:

Howard Baer and Jeanette Baer
Robert MacLeod

Estate Trustees (Applicants)

• and -

Karen Louise Baer and Nancy Elaine Baer
Montgomery Shillington

Estate Beneficiaries (Respondents/Objectors)

HEARD: July 24, 2014 at Woodstock, Ont.

ENDORSEMENT

(CONTESTED PASSING OF ACCOUNTS)

LEACH J.

[1] Before me is a disputed application to pass accounts, brought by the estate trustees of Norma Baer, who died on December 21, 2012.

[2] The application prompted a formal notice of objection by two of the estate beneficiaries, which in turn led to formal cross-examination of the two estate trustees, in advance of yesterday’s hearing.

Background

[3] While I have reviewed all of the material before me, (including the initial brief filed by the estate trustees, the two transcripts generated in relation to the formal cross-examinations, and the brief of exhibits referred to during the cross-examinations), I believe the essential background to the dispute may be summarized as follows:

• The widowed testatrix, Norma Baer, had five children relevant to this matter, all of whom share her surname: Frank, Howard, Jeannette, Nancy and Karen Baer. Given the common surnames, I will henceforth refer to the parties by their first names.

• On April 2, 2008, the testatrix executed a will, prepared by her lawyer Mr Bishop. Its provisions included appointment of Howard and Jeannette as her two named estate trustees, and division of the estate residue into five equal shares for her five surviving children.

• Immediately prior to her death, the principal asset owned by the testatrix was a 98 acre family farm property, (“the farm”), located in the Township of Blandford-Blenheim. Before the testatrix passed away, that farm apparently was still being worked to some extent by her son Frank, (based on the sworn testimony of Howard, and other indications in the material of Frank having various items of equipment located on the farm at the time of his mother’s death). Apart from personal items, the other notable assets of the testatrix were a $50,000 investment and some cash balances.

• At some point before the testatrix died, Frank indicated a desire to purchase the farm from his mother. Apparently sensitive to the fact it would not be an arm’s length transaction, and therefore raise possible issues of fairness and propriety, Frank enlisted the services of a professional real estate agent, Terry Becket, to assist with the proposed transaction, and ensure that everything would “be legal and above board”. However, the testatrix “did not want to deal with it” before her death. To the extent Mr Becket was involved at the time, he accordingly was retained by Frank alone.

• The testatrix died on December 21, 2012, and Howard and Jeanette began using the legal services of Mr Bishop, (formerly their mother’s lawyer), to assist with matters relating to the estate of the testatrix.

• Shortly after the testatrix passed away, Howard and Jeanette, in their capacity as estate trustees, also retained a professional real estate appraiser, Owen Farrell, A.A.C.I., to provide an opinion as to the farm’s market value.

• On January 7, 2013, a letter was sent to the estate by Mr Wolyniuk, a lawyer representing clients, (later determined to be members of the Gunter family), who pro-actively made an unsolicited offer to purchase the farm property for $375,000, conditional on financing, (albeit with an indication financing was not expected to be a problem), and with a flexible closing date that would be totally at the discretion of the estate.

• On January 9, 2013, Mr Farrell provided a written opinion, indicating that the farm had a market value of $450,000.

• On April 5, 2013, notwithstanding at least Howard’s knowledge (admitted during cross-examination) of an offer to purchase the farm for up to $350,000, delivery of the aforesaid Wolyniuk letter confirming the Gunter family’s offer to purchase the farm for $375,000, and Mr Farrell’s appraisal indicating that the farm was worth $450,000, Howard and Jeannette sold the farm to their brother Frank and other members of Frank’s family, (his wife and son), for just $300,000. Mr Bishop acted for all parties to the real estate transaction, (i.e., Howard and Jeanette as estate trustees, and Frank and his family members). Karen and Nancy were not informed of the transaction before it took place, and that was quite deliberate, according to Howard’s sworn testimony during cross-examination. In particular, Howard swears that Mr Bishop gave “orders” directing all concerned to “keep their mouths shut” until the sale had been completed, before then dealing with any concerns raised afterwards by Karen and Nancy.

• On April 8, 2013, Mr Bishop rendered an account for $2,542.50, for professional legal services provided to the estate. One component of the account, (paid in full by the estate trustees using estate assets), requested $1,500 for services “up to sale of the farm and distribution of proceeds”, and expressly included “Discussions regarding any liability arising from sale” and “How to deal with sisters who disputed value of farm”.

• Upon learning that the estate trustees had sold the farm to Frank and his family for just $300,000, Karen and Nancy did indeed question the propriety of the transaction, and retained legal counsel to pursue their concerns.

• On or before June 14, 2013, the estate trustees then commissioned and received a second professional appraisal of the farm property, (after it was no longer formally an estate asset). The resulting appraisal, performed by Brenda Cooper, estimated that the farm had a market value of $435,000. Ms Cooper charged $2,260 for preparation of that second appraisal, and her account was paid by the estate trustees, (using estate assets).

• At some point after the farm sale, in the spring of 2013, there was then a complete breakdown in the relationship between the estate trustees, (Howard and Jeanette), and Mr Bishop. In a letter sent by Mr Bishop to Karen and Nancy’s lawyer on June 20, 2013, Mr Bishop indicates that he immediately terminated his involvement in the estate upon his “discovery that there had been an A.A.C.I. member appraisal for $450,000”, and that he then heard nothing further from the estate trustees or anyone representing them after May 28, 2013. The estate trustees very much dispute Mr Bishop’s account of events, and say that the entire estate administration dispute stems from negligent advice and instructions provided by Mr Bishop, whose retainer was terminated by the estate trustees after they obtained a “second opinion” from their new counsel. That position was made clear not only in counsel submissions before me, but in the sworn testimony of Howard during cross-examination. In particular, Howard testified that Mr Bishop not only instructed the estate trustees to withhold disclosure of the impugned sale from Karen and Nancy until after its completion, but that Mr Bishop had in fact been told of the $450,000 appraisal at least “3 separate times”. However, Mr Bishop allegedly felt the sale to Frank was a “simple transfer from one family member to another”. In response to a suggestion that Mr Bishop had “fired” Howard and Jeanette as clients, their new counsel’s answer, adopted by Howard, was that it was “the other way around”.

• However it happened, there is no question that the estate trustees formally retained new counsel. Notwithstanding formal termination of his retainer by the estate trustees, Mr Bishop then rendered a further account to the estate on August 3, 2013. That account, for $998.75, (once again paid in full by the estate trustees, using estate assets), was for services that expressly included “attendance with estate trustees to discuss controversy raised by other beneficiaries”, dealing with “inquiries from other estate beneficiaries”, writing a “further letter to lawyer”, and “review of file & reporting to new estate lawyer”.

• By August 8, 2013, if not earlier, Karen and Nancy were formally asserting, through correspondence sent by their legal counsel to new counsel representing the estate trustees, that the farm sale to Frank’s family for less than market value was inappropriate. They demanded either compensation or remedial steps to reverse the transaction followed by a further sale of the farm “at a fair market value after exposure through a multiple listing service”. It was made clear that Karen and Nancy were not content to have Frank’s transactional costs, from the aborted transaction, borne by the estate (as opposed to the estate trustees in their personal capacity).

• In the fall of 2013, with the co-operation of Frank’s family, and the assistance of the new counsel retained by the estate trustees, steps then were taken to implement remedial measures to address the concerns raised by Karen and Nancy. The earlier sale was not reversed, (in the sense of title to the farm being conveyed by Frank’s family back to the estate trustees). Rather, Frank and his family agreed to list the farm for sale through a professional real estate broker, (i.e., Mr Becket, the same broker previously retained by Frank), with the proceeds of sale then being transferred to the estate. The resulting listing agreement, between Frank’s family and Mr Becket, was dated September 4, 2013.

• On October 18, 2013, the farm then was sold to the Gunters, (who dealt with Mr Becket), for an agreed purchase price of $450,000; i.e., the same amount as that indicated in the original Farrell appraisal received by the estate trustees in early January of 2013. The “trust ledger” prepared by the estate trustees’ new counsel indicates that the purchase funds were directed to the estate, rather than Frank’s family. However, the estate trustees then paid Frank $300,000, (as reimbursement of the purchase price paid in the earlier sale transaction). Further estate disbursements associated with the new sale included a real estate commission of $30,510 paid to Mr Becket, (by way of his retention of a $2,500 deposit paid by the Gunters and a further $28,010 disbursement paid by the estate trustees), as well as additional legal fees and disbursements. It was candidly acknowledged by Jeannette, during cross-examination, that she and Howard had “really nothing” to do with efforts to implement this second sale of the farm, although I think a more accurate description is that they seem to have entrusted implementation and execution of the necessary arrangements to Mr Becket, Frank’s family, and their new counsel.

• On January 22, 2014, Howard and Jeanette then delivered their formal “Notice of Application to Pass Accounts”, accompanied by a sworn “affidavit verifying accounts”, (with various attached exhibits).

• On February 27, 2014, Karen and Nancy delivered their “Notice of Objection to Accounts”, formally setting out various concerns.

Remaining objections – Position of parties

[4] By the time of the hearing before me, Karen and Nancy had abandoned a number of their stated concerns, (owing to further disclosure of information and documents, and a voluntary decision to not pursue complaints relating to relatively modest estate expenditures and assets).

[5] In the result, their complaints were focused on the following specified matters:

a) They object to the $36,313.57 in executor compensation being claimed by the estate trustees. In that regard, they have specific complaints, such as the application of standard percentages to capital receipts and disbursements that are said to be artificially inflated, as they include duplicative amounts relating to both the initial sale and subsequent resale of the farm. More generally, they say Howard and Jeanette’s administration of the estate effectively has been a fiasco, involving clear breach of fiduciary obligations, which should not be rewarded by the payment of the compensation normally expected by competent estate trustees who ensure a smooth and efficient estate administration for the benefit of all concerned.

b) They object to Howard and Jeanette’s proposed further payment of $16,318.02 from the estate to Frank, (i.e., a payment beyond the $300,000 purchase fee reimbursement already made), as intended compensation to Frank for additional out-of-pocket expenses he incurred as a result of the aborted sale arrangement. Such expenses are said to include the following: a $6,780 real estate commission paid by Frank to his broker Mr Becket; $2,451 in land transfer tax; $255 for title insurance; $1,214.50 in legal fees; $4,599.16 in mortgage interest payments; and $1,108.36 in property taxes. Karen and Nancy do not really dispute that these expenses were incurred, but question why any such reimbursement should be funded by the estate, and indirectly all estate beneficiaries, when they were brought about by a transaction in which the estate trustees ought never to have engaged in the first place.

c) They say Howard and Jeanette should be personally responsible for certain expenses said to represent improper waste or otherwise inappropriate payments already charged to the estate. Specifically, they say the estate should not have paid either of Mr Bishop’s accounts, as they relate to the provision of legal advice directed towards effective planning and concealment of a breach of fiduciary obligations by the estate trustees, the co-ordination of a defence in that regard once the breach of fiduciary duty had been raised by the other estate beneficiaries, and/or other efforts at damage control that would not have been necessary had the estate trustees acted properly. For similar reasons, Karen and Nancy say the second appraisal was completely unnecessary, and an exercise in self-interest by the estate trustees who were hoping, (unsuccessfully), to secure after-the-fact support for their sale of the farm at a price far lower than that suggested by the Farrell appraisal. Finally, Karen and Nancy say the estate’s payment of a real estate commission on the second sale of the farm was inappropriate, not only because the second sale should not have been necessary, but also because Mr Becket’s contract was with Frank’s family rather than the estate, and the Gunters in any event were purchasers who proactively had approached the estate prior to Mr Becket’s involvement and efforts to list the farm for sale.

d) They say that Howard and Jeanette should personally be responsible for all legal costs incurred, rather than the estate.

[6] For their part, Howard and Jeanette say that they intended no misconduct or harm. As noted above, they attribute all difficulties experienced in relation to the estate’s administration to the receipt of negligent or otherwise inappropriate legal advice provided by Mr Bishop.

[7] Noting that they personally gained nothing in financial terms from the aborted sale and other impugned transactions, (and indeed effectively shared in the resulting diminution of estate assets available for distribution to all beneficiaries, including themselves), Howard and Jeanette also emphasize that, with Frank’s co-operation, the effects of any breach of fiduciary duty voluntarily have been reversed, in large measure. They suggest that the further reimbursement of Frank’s wasted expenditure is only fair, given that he was not obliged to co-operate in the remedial measures that left him out-of-pocket.

[8] Moreover, they say that a number of the expenditures objected to by Karen and Nancy would have been incurred in any event, for the benefit of the estate.

[9] More generally, they say that the circumstances should not prevent them from receiving any compensation whatsoever in relation to their administration of the estate.

[10] They also note that, in effect, they already have reduced the compensation they otherwise might legitimately and normally have sought; i.e., by claiming compensation on capital receipts and disbursements and revenue receipts and disbursements only up until December 31, 2013, by foregoing any claim relating to the amount available for distribution, and by waiving any management fee to which they otherwise might have been entitled. All this, they say, offsets the acknowledged “double counting” that admittedly may result from including the receipts and disbursements from both sales of the farm in the calculation of executor compensation.

Analysis

[11] The court’s jurisdiction to consider and address the complaints raised by Karen and Nancy was not disputed.

[12] In particular, it was acknowledged by all concerned that the court has wide powers, pursuant to s.49 of the Estates Act, R.S.O. 1990, c.E.21, to make full inquiry, during such a passing of accounts, into all aspects of an estate’s administration and estate trustee conduct, and to make a wide range of possible orders, (by way of damages or otherwise), addressing any misconduct, neglect or default on the part of an estate trustee that has occasioned financial loss to the estate.

[13] Similarly, all concerned agreed that the court had jurisdiction, pursuant to s.56 of the Trustee Act, R.S.O. 1990, c.T.23, to find an estate trustee liable and chargeable for any waste or conversion resulting from his or her misconduct.

[14] The question, of course, was whether and how that jurisdiction should be engaged in the circumstances now before me.

[15] As a threshold determination, I find that Howard and Jeanette clearly breached their fiduciary obligations as estate trustees.

[16] It is trite law that an estate trustee has a fiduciary duty to act in the best interests of an estate and its beneficiaries, and in that regard, whether a professional or non-professional, an estate trustee must exercise the standard of care employed by a person of ordinary prudence in managing his or her own affairs. See, for example: Beatrice Watson-Acheson Foundation v. Polk, [2006] O.J. No. 2518 (S.C.J.), at paragraph 53, and authorities cited therein; Fales v. Canada Permanent Trust Co., 1976 14 (SCC), [1977] 2 S.C.R. 302, at p.315; and Krentz Estate v. Krentz, [2011] O.J. No. 1124 (S.C.J.), at paragraph 54.

[17] This includes an obligation, when liquidating estate assets, to obtain “fair market value” for the assets being sold, with that value generally being the highest price available in an open and unrestricted market, between informed and prudent parties, acting at arm’s length and under no compulsion to act, expressed in terms of money or money’s worth. The traditional method of arriving at fair market value is to expose the asset for sale in the marketplace. See Re Ballard Estate (1994), 1994 7305 (ON SC), 20 O.R. (3d) 189 (Gen.Div.), at paragraphs 38-39 and 50.

[18] Estate trustees also are bound by what is colloquially known as the “even-hand rule”; i.e., a duty to act impartially as between beneficiaries. In his expansive text on The Law of Trusts in Canada, 2nd ed., (Toronto: Carswell, 1984), Professor Waters describes that rule in the following terms:

It is a primary duty upon trustees that in all their dealings with trust affairs they act in such a way that, if there are two or more beneficiaries, each beneficiary receives exactly what the terms of the trust confer upon him and, otherwise, receives no advantage, and suffers no burden which other beneficiaries do not share. In this way, the trustees act impartially; they hold an even-hand. The settlor or testator may choose to give disproportionate interests to various beneficiaries and he, very often, does so in practice, but that is his privilege. It is still the duty of the trustees to carry out the terms of the trust as they find them and to ensure that in the administration of the trust they do not give advantage or impose burden when that advantage or burden is not so found in the terms of the trust.

[19] In the case before me, Howard and Jeanette, in their capacity as estate trustees, initially acted in complete disregard of their obligation to act for the benefit of the estate, and all of its beneficiaries, by not making efforts to liquidate its primary asset for fair market value.

[20] Not only did they fail to test and determine the farm’s true value by sale on the open market, (which would have been justified only if there was some significant off-setting benefit to the estate as a whole by some other means of disposition). They also knowingly parted with that significant estate asset in exchange for a purchase price less than other outstanding and known offers, and for just two-thirds of the appraised fair market value as determined by a professional to whom the estate had paid money for an appropriate opinion.

[21] No person of ordinary prudence, in managing his or her own affairs, would readily part with such a significant asset for such an inappropriately depressed price.

[22] In the circumstances, a non-market sale of the farm to anyone for that inappropriately depressed price would represent a breach of the estate trustees’ fiduciary obligations, to the gain of whoever was fortunate enough to acquire the property at such a bargain cost of acquisition.

[23] However, that breach of fiduciary duty then was compounded, in the circumstances of this case, by Howard and Jeanette conferring an effective gain on one estate beneficiary to the significant detriment of all other estate beneficiaries.

[24] In her estate arrangements, the testatrix expressly intended to treat her five children equally, and effectively charged Howard and Jeanette with that responsibility. But in selling the farm to Frank for only two-thirds of its professional appraised value, (and eventually realized market value), the estate trustees voluntarily entered into an arrangement that would disproportionately benefit Frank at the direct expense of all other estate beneficiaries.

[25] Again, Howard and Jeanette therefore compounded their initial breach of fiduciary obligation, (by knowingly liquidating the farm asset for less than fair market value), by breach of another fiduciary obligation, (by failing to act impartially and adopt an even-handed approach as between all five estate beneficiaries).

[26] In my view, it is no answer to these breaches to say that Howard and Jeanette stood to gain nothing financially from these breaches of fiduciary duty and, indeed, stood to lose as much financially as Karen and Nancy from the undervalued sale to Frank.

[27] “Gains” are not always measured in financial terms, when it comes to motivation. It may have been that Howard and Jeanette were acting in furtherance of a personal preference or agenda worth more to them than money. For example, they personally may have thought it preferable that the farm property remain in the extended family. Alternatively, they may simply have had a personal preference or sympathy for their brother Frank, and/or antipathy for their sisters Karen and Nancy.

[28] More generally, however, fiduciary obligations are prophylactic rules, the enforcement of which accordingly must not and does not depend on whether the breaching fiduciary happens to also incur a personal loss as the result of his or her misconduct.

[29] Nor do I think that the breach of fiduciary obligations by Howard and Jeanette can or should be excused by their professed reliance on negligent or inappropriate legal advance by Mr Bishop.

[30] In that regard, I have great difficulty accepting, on the evidence before me, that Howard and Jeanette were completely oblivious to the impropriety inherent in the contemplated sale of the farm to Frank, and were led unwittingly into this mess entirely by the legal advice received from Mr Bishop.

[31] Surely it does not take a legal education to realize that there is something highly questionable about parting with a substantial estate asset for a price substantially less than known offers, and well below the fair market value indicated by a professional appraisal. In my view, anyone of ordinary prudence would have realized that the transaction was inappropriate.

[32] In this case, there nevertheless were additional warning signs that the estate trustees chose to ignore.

[33] In that regard, even before death of the testatrix, Frank openly demonstrated an awareness, known to Howard and Jeanette, that extra precautions were advisable to ensure the propriety and fairness of any purchase of the farm by Frank; (e.g., by his retention of a professional real estate agent to broker such a sale). Yet the need to address such concerns seems to have been abandoned after Howard and Jeanette assumed the role of estate trustees.

[34] More importantly, in my view, if Howard and Jeanette were indeed instructed to “keep their mouths shut” and conceal the transaction from Karen and Nancy until after its completion, the exhortation to secrecy should in itself have alerted them to a realization that the transaction suffered from a defect that would not withstand public scrutiny.

[35] Finally, even if Howard and Jeanette are indeed blameless, and Mr Bishop is in fact ultimately responsible for this estate administration debacle because he gave inappropriate legal advice accepted and acted upon by the estate trustees, I see that as no justification for visiting the consequences of the resulting breach of fiduciary obligations on the estate beneficiaries. Howard and Jeanette are the ones who have breached their fiduciary obligations vis-à-vis the estate, and they accordingly are the ones who should answer in the first instance to the estate for any resulting loss.

[36] Moreover, if the estate trustees were indeed led into their current predicament by reliance on negligent or improper legal advice, they are not without remedy.

[37] With the above general principles and findings in mind, I turn to the specific objections raised by Karen and Nancy, (albeit in a slightly different order to the manner in which they were canvassed above), and the appropriate remedies to be applied, if any.

[38] In that regard:

• I agree with the objectors that the estate should not make the contemplated further payment of $16,318.02 to Frank, as reimbursement for the remaining expenses he has incurred as a result of the aborted farm sale transaction. I agree that Frank and his family acted admirably, in extending voluntary co-operation to reverse the impact on the estate resulting from the estate trustees’ breaches of fiduciary obligation. However, I think it also must be noted that Frank was not an entirely blameless party, as far as the impugned transaction is concerned. As noted above, he demonstrated prior awareness of the reality that a non-arm’s length sale to him would raise concerns of fairness, propriety and legality. He nevertheless readily went along with the initial sale to him by the estate, when he too must have realized that he was benefitting at the expense of the estate and all other estate beneficiaries. In any event, in terms of relative equities, there is simply no justification for visiting further costs of the aborted transaction on all beneficiaries of the estate. In particular, I fail to see any rationale for making Karen and Nancy absorb a substantial part of the burden resulting from the inappropriate conduct of their three siblings. If Howard and Jeanette wish to compensate Frank for any residual losses he has incurred by participating in a real estate transaction they should never have authorized, they are free to use the funds they eventually receive as estate beneficiaries in whatever manner they wish. As a matter of equity, however, I find that Howard and Jean can and should not effectively oblige Karen and Nancy to contribute to that reimbursement by making a further payment to Frank from the funds of the estate per se. Permitting them to do so would simply compound their original failings.

• I agree with the objectors that certain expenditures were not for the benefit of the estate, (as opposed to the personal benefit of the estate trustees), and should therefore be regarded as waste which the estate trustees should be obliged to pay back to the estate by way of corresponding damages. (Although counsel for Karen and Nancy suggested that such sums be charged against the beneficial entitlements of Howard and Jeanette, in my view this ignores the fact that, in their personal capacity as estate beneficiaries, Howard and Jeanette would be entitled in due course to a portion of any funds returned by them to the estate, whereas a charge for the same amount against their inheritance would deprive them unfairly of that benefit.) Specifically, in terms of the sums and expenditures that should be regarded as “waste” that Howard and Jeanette need to repay to the estate, by way of damages, I would include the following:

o The $2,260 expenditure incurred by the estate for the second professional appraisal of the farm carried out by Brenda Cooper. The estate already had obtained a perfectly adequate professional appraisal of the farm property, just six months earlier. Moreover, I agree that the timing of the second appraisal, in the immediate wake of objections raised by Karen and Nancy, strongly suggests that the estate trustees were hoping to justify their conduct as estate trustees after the fact, or minimize criticism of their actions as estate trustees. (A further appraisal was not necessary to comply with any request by Karen and Nancy that the transaction simply be reversed before the farm was then exposed to an open market valuation accomplished through a formal listing.) The second appraisal therefore was an action taken with a view to benefitting the estate trustees, rather than the estate. The associated cost should not have been visited on the estate.

o The $2,987.15 and $998.75 paid to Mr Bishop. The latter account was clearly an expense that would have been entirely unnecessary but for the estate trustees’ misconduct, and Mr Bishop’s further involvement in resulting transitional arrangements and damage control. As for the former account, the situation is less clear, at least insofar as the entirety of that first account is concerned. Certainly, the $750 component of the account, (prior to application of HST), for professional services “pertaining to the sale of the farm”, represented an expense completely thrown away by the estate, insofar as it was incurred to facilitate an improper transaction that effectively superceded in its entirety by the subsequent sale. Of the remaining $1,500 component of the account, (prior to application of HST), the estate and indirectly all of its beneficiaries (including Karen and Nancy) should hardly have been obliged to pay for advice directed towards the planning of a surreptitious arrangement to violate the estate trustee’s fiduciary obligations, or defend those actions after the fact, to the detriment of beneficiaries. Such expenditures were for the benefit of the estate trustees, rather than the estate. As for the remainder of the first account, I agree that some of the advice provided by Mr Bishop may have had residual benefits for the estate and its administration. However, without a more detailed breakdown of the account, segregation of such advice is not possible, and I agree with the objectors that the estate trustees should not receive the benefit of the doubt in the circumstances, particularly insofar as they bear the overall onus of establishing the propriety of their conduct and expenditures on a passing of accounts.

• I nevertheless do not agree with the objectors that the $30,510 real estate commission paid on the second farm sale should be regarded as similar “waste” that should be repaid to the estate by Howard and Jeanette. As noted above, the estate trustees had an obligation to liquidate the estate’s farm asset at fair market value, and this is precisely what counsel representing Karen and Nancy were demanding, (as an alternative to personal compensation), by asking that the farm “be sold at fair market value after exposure through a multiple listing service”. That would have necessitated a real estate commission being paid to some broker, and nothing in the evidence before me suggests that the commission charged by Mr Becket was in any way atypical of the commission normally charged in relation to such a transaction. The suggestion that the commission was paid pursuant to a listing agreement to which the estate was not formally a party strikes me as an inappropriate reliance on form, when the underlying substantive reality is that Frank and his family clearly were not acting for themselves, but were instead conducting the second sale for the benefit of the estate and as agents of the estate, which received the purchase price directly. (The alternative was a formal “sale” conveying the farm back to the estate, before a third sale by the estate by way of its own formal listing agreement, with payment of the necessary real estate commission.) Finally, I reject the argument, advanced by counsel for Karen and Nancy, that payment of a real estate commission was inappropriate because the sale ultimately was made to the Gunters, who independently had made an offer to the estate prior to any listing agreement. In my view, this ignores the reality that the Gunters originally were prepared to offer only $375,000 for the farm property. Listing of the property, thereby exposing it to the possibility of purchase by other interested and competing purchasers, clearly seems to have prompted further movement and more generous offers by the Gunters. Payment of a commission in such circumstances therefore is not inappropriate, and leaves both the estate and its beneficiaries in the same position they would have been in, in that regard, had the estate trustees not breached their fiduciary obligations and embarked on a listing and open market sale in the first place.

• As far as the claim by Howard and Jeanette for executor compensation is concerned, I readily agree with the objectors that the base figures, to which the standard percentages have been applied, have been inappropriately inflated by inclusion, in capital receipts and disbursements, and revenue receipts and disbursements, of amounts relating to both of the farm sale transactions – all of which effectively combine to suggest that the estate was far more valuable and complex than it was. I also agree with the objectors that this artificial augmentation is not entirely offset by the stated willingness of the estate trustees to forego claims for compensation on the amount available for distribution, and/or a management fee. Beyond such concerns, however, I do not think the $36,313.57 amount of executor compensation claimed by the estate trustees is appropriate in this case, having regard to the “five factors” approach to such determinations, mandated by our Court of Appeal in Laing Estate v. Hines (1998), 1998 6867 (ON CA), 41 O.R. (3d) 571 (C.A.). In this case, the “size of the trust” was not modest or minimal, but it was inflated by the double-counting brought about by the estate trustees’ own misconduct. What should have been a relatively straight-forward estate administration, in terms of “care and responsibility”, (involving liquidation by listed sale of one principal asset, and ready conversion of the remaining financial assets apart from personalty), became needlessly complicated by the failure of the estate trustees to demonstrate the “skill and ability” reasonably expected and required of them, such that the “time occupied in performing their duties” was needlessly enhanced, and the resulting administration of the estate was anything but a “success”. As noted by counsel for the estate trustees, exceptional misconduct may deprive an estate trustee of his or her entire right to remuneration altogether, but neglect and default, if not dishonest, and capable of being made good in money, may influence without completely negating an amount of compensation awarded; see Assaf Estate (2009), 2008 ONCA 593, 91 O.R. (3d) 561 (S.C.J.), at paragraph 151, and the authority cited therein. In this case, there is no question, for the reasons outlined above, that the conduct of the estate trustees has been less than admirable. However, the lack of personal benefit and self-deprivation experienced by the estate trustees as a result of the misconduct, and the extraordinary remedial actions taken by the estate trustees to address the situation, while not excusing their misconduct, also belies, I think, the suggestion that the neglect and default in this case were definitely driven by dishonesty. Moreover, the estate beneficiaries, including the objectors, eventually will have the benefit of a fully administered estate, (despite initial missteps), and this undoubtedly was accomplished, at least in part, by the efforts of the estate trustees. On the whole, I think justice would be served by a reduction of executor compensation from the $36,313.57 claimed to the sum of $15,000.

• Although the objectors framed their legal material to suggest that the estate trustees “should personally be responsible for all legal costs”, I think this too is a somewhat absolutist approach that would be excessive, and not cognizant of the realities. The simple fact of the matter is that, even in the absence of any improprieties by the estate trustees, legal fees almost certainly would have been incurred to bring the estate to a successful conclusion. Those fees would have included those properly incurred to implement a proper fair market sale of the farm property, but also legal fees regularly incurred to provide estate trustees with normal advice and assistance in the course of estate administration, including the preparation of requisite legal documentation, service and filings. Nothing in the evidence before me suggests that, since the retention of their new counsel, the estate trustees have done anything improper or unusual, (apart from admirable voluntary efforts to address and reverse the consequences of their earlier missteps). In the result, I do not think the circumstances warrant penalizing the estate trustees by making them absorb any and all legal fees incurred by the estate, thereby giving the objectors the benefit of an estate administered completely free of the charges normally expected by beneficiaries. Having said that, the fees incurred by the estate trustees to their new counsel, for the purpose of defending the misconduct of the estate trustees and its aftermath, should not be laid at the door of the estate. (In other words, like the accounts of Mr Bishop, fees paid to the new counsel of the estate trustees for such services should be segregated and paid personally by the estate trustees.) Unfortunately, I am not in a position to make such distinctions based on the material now before me. Hopefully, the parties will be able to take a sensible approach to such matters, and make agreed distinctions in that regard, without the need for further litigation, before the estate is finally administered.

[39] The accounts presented by the estate trustees therefore are approved, subject to the disallowances, reductions and corrective orders set forth in my above reasons.

Costs

[40] Because my decision was reserved, the parties were unable to make any submissions regarding costs.

[41] As I indicated at the time of the hearing, a sensible approach would be for the parties to agree on an appropriate cost disposition without the need for further litigation and legal expense, which already has caused considerable acrimony between these siblings.

[42] I also note that success in the formal dispute before me was somewhat divided, such that my preliminary view would favour each side bearing their own costs of this exercise.

[43] However, I also was advised, at the close of submissions, that both sides put forward settlement offers that may need to be considered.

[44] If the parties are unable to reach an agreement in relation to costs:

a. Karen and Nancy may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs), within two weeks of the release of this decision;

b. Howard and Jeanette then may serve and file responding written cost submissions, also not to exceed five pages in length, within two weeks of service of the written cost submissions delivered by Karen and Nancy; and

c. Karen and Nancy then may serve and file, within one week of receiving any responding cost submissions from Howard and Jeanette, reply cost submissions not exceeding two pages in length.

[45] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the application brought by Howard and Jeanette, and the associated determination of the objections raised by Karen and Nancy.

“Justice I. F. Leach”

Justice I. F. Leach

Released: July 25, 2014