ONTARIO

SUPERIOR COURT OF JUSTICE

ESTATES LIST

COURT FILE NO.: 01-3272/11
DATE: 20140812

BETWEEN:

BLAKE LEIBEL, in his personal capacity and BLAKE LEIBEL, JORDAN LIPSON and CODY LEIBEL, in their capacity as Trustees of The Eleanor Leibel Family Trust 2009

Plaintiffs
(Responding Parties on the Motion)

– and –

ROSLYN LEWIS, HERB LEWIS,

CHITEL ENTERPRISES LTD.,

1352585 ONTARIO LTD., ALROS PRODUCTS LIMITED, LORNE LEIBEL, CODY LEIBEL, 1352584 ONTARIO LTD., BLAKE STAR HOLDINGS INC. and LEE CORP. INC.

Respondents
(Moving Parties on the Motion)

Irving Marks and Barbara Green, Counsel for the Applicant, Blake Leibel, Responding Party on the Motion

Clare E. Burns and Bianca La Neve,

Co-Counsel for Roslyn Lewis, Herb Lewis, Chitel Enterprises Ltd., 1352585 Ontario Ltd., and Alros Products Limited, Respondents and Moving Parties on the Motion

Gary Luftspring and Andrea Sanche, Co-Counsel for the Respondents and Moving Parties on the Motion, Lorne Leibel, Cody Leibel, 1352584 Ontario Ltd., Blake Star Holdings Inc. and Lee Corp. Inc.

HEARD: JUNE 19, 2014

ENDORSEMENT: GREER J.

[1] In these Reasons, I shall refer to all parties by their first names or corporate names for clarity. The Moving Parties on this Motion are Roslyn Lewis (“Roslyn”), Herb Lewis (“Herb”), Chitel Enterprises Ltd. (“Chitel”), Alros Products Limited (“Alros”), 1352585 Ontario Ltd., Lorne Leibel (“Lorne”), Cody Leibel (“Cody”), 1352584 Ontario Ltd., Blake Star Holdings Inc.(“Blake Star”), and Lee Corp. Inc. (“Lee” ). They move for an Order dismissing Blake Leibel’s (“Blake”) challenge to the validity of the Primary and Secondary Last Wills and Testaments of his late mother, Eleanor Leibel (“Eleanor” or “the deceased”). Both such Wills are dated April 9, 2011.

[2] These Respondents so move on the basis that such relief sought is statute-barred, pursuant to Sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c.24, Schedule B, as amended (“the Act”). In the alternative, they ask for an Order dismissing the will challenge on the basis that it is barred by virtue of the equitable doctrines of estoppel by convention and estoppel by representation.

Some background facts

[3] Eleanor Leibel, the deceased, died on June 4, 2011, leaving her Primary and Secondary Wills dated April 9, 2011 (“the 2011 Wills”). She was survived by her sons, Blake and Cody, and her husband, Lorne, from whom she was separated for many years. They were not divorced at the date of her death. She named her sister, Roslyn and Lorne as her Estate Trustees in the 2011 Wills.

[4] Eleanor’s assets, at her death, consisted of her house at 44 Burton Road, Toronto and preference shares of Ellieco (redeemable for approximately $7,000,000). It owns 50% of the voting shares of Chitel, which has voting control of Alros. In addition, she owned the shares of Blake Star which owned a condominium in Florida, the shares of Lee, which owned a condominium in California, and personal and household goods and effects.

[5] Blake and Cody were both living in California at the date of Eleanor’s death. When Eleanor died, the Estate Trustees immediately told both Blake and Cody of her death. Roslyn and her husband, Herb, say that copies of the 2011 Wills were sent by Purolator to Blake in California on July 12, 2011. Blake, however, did not commence this Will Challenge until September 5, 2013, by way of Application in Ontario. They further say that both Blake and Cody were aware that Eleanor had lung cancer and knew by the end of February 2011, that she had metastatic brain cancer before her death.

[6] One of the Applicants is Jordan Lipson (“Jordan”), a relative of Eleanor’s. He and Blake and Cody, are the Trustees of the “The Eleanor Leibel Family Trust 2009”. He took no part in the Motion.

[7] Margaret Rintoul is the deceased’s long-standing lawyer. She drafted the Wills in question. On June 19, 2011, about 2 weeks after Eleanor’s death, Blake e-mailed her and expressed his concerns about Roslyn and Lorne being the Estate Trustees. He said to Ms. Rintoul:

…in a previous confidential conversations I mentioned hiring a lawyer. Could you please send me a list and do you approve of a place called, “Waterstreet Family Wealth Counsel?”

Ms. Rintoul answered Blake by e-mail dated June 28, 2011. Among other things, she said she was not familiar with Wealth Counsel but did provide him with the names of 3 lawyers who are estate experts. She also warned him of the very large income tax liability that would require payment to be made out of the Estate.

[8] Roslyn says that in late June 2011 she began cleaning out the deceased’s residence at 44 Burton Road with Blake’s full knowledge. Under the terms of her Primary 2011 Will, Eleanor left her residence at 44 Burton Road outright to Blake. Eleanor also dealt with the real property in California occupied by Blake, his wife and child, directing that if it was not already in his name at her death, it was to be subject to the terms of a trust as set out in her Will. The residue of her Estate was to be divided equally between Cody and Blake.

[9] Blake moved quickly to try to sell the Burton residence that had been left to him under Eleanor’s Will. It was listed for sale in October 2011. In the meantime, Roslyn and Lorne submitted the Primary Will for probate and probate was granted to them on October 19, 2011. They say that Blake knew, no later than January 2012, that probate had been granted to them. Blake participated in the sale of the house. It sold for $5,500,000 and the closing took place in late May 2012.

[10] Other distributions under the Wills were made by Roslyn and Lorne as the Estate Trustees. This was all done prior to any Income Tax Clearance Certificate being applied for. Blake knew that Eleanor’s Estate was going to be liable for a large payment of income tax. On legal advice received by him, Blake lent Alros some of the monies received from the sale of the house, to pay down some of those taxes. Blake has included in his own affidavit in this Motion, a copy of a letter to him from Ms. Rintoul, dated May 15, 2012, which references the loan and encloses a Consent and Direction to be signed by Blake in order to accomplish the transfer of the net sale proceeds. From the net proceeds of the sale, Blake received approximately $1,700,000 from the sale of the Burton residence, separate and apart from the $1,425,000 loan which was made to Alros. He received an agreement about the loan that set out the interest payment to be made on the loan.

[11] In paragraph 3(f) of the Primary Will, Eleanor directed that the residue of her Estate be divided equally between Blake and Cody. Blake also received the deceased’s art collection, with the balance of her personal belongings to be divided between him and Cody. On Blake’s instructions, Roslyn and Lorne shipped some art and household goods to Blake in California.

[12] In her Secondary Will, Eleanor left Blake her shares of Lee and her shares of Blake Star. The residue of the Estate consisted of Eleanor’s Ellieco Preference Shares and her personal possessions, excluding her works of Art, which went to Blake under the Primary Will.

[13] Lee owned a condominium in California (“the California Condo”). Blake asked immediately after Eleanor’s death to have this Condo sold. He participated in the sale process and received over $400,000 U.S. from its sale in the Fall of 2012.

[14] Eleanor also had a power of appointment under The Eleanor Leibel Family Trust 2009, which she exercised in her Secondary Will. There is a question, in the Estate administration, as to whether Blake’s and Cody’s issue have an interest in it or whether they are its sole beneficiaries, given the wording in the Will.

Blake’s Application

[15] On September 5, 2013, Blake brought on this Application for a declaration that the 2011 Wills of Eleanor were not valid. He claims that Eleanor lacked the necessary capacity to give instructions for new Wills or to sign them. He also alleges that Eleanor was unduly influenced to sign them. All parties acknowledge that Eleanor died at the age of 61 of brain cancer.

[16] Blake says that Eleanor expressed wishes to him and others that he would be the sole beneficiary of her Estate. He says that Eleanor did not want Roslyn and Lorne to be her Estate Trustees. He says that the residue clause of the Primary Will, leaving half to each of him and Cody, was not what Eleanor wanted. He says that Eleanor and Lorne, his parents, were separated for over 30 years prior to her death. He says that when Cody was about 12 years of age, Cody went to live with Lorne. Blake says he remained living with Eleanor. He says each parent was financially responsible for the son who was living with that parent. He expresses concern that Cody will inherit all Lorne’s money on his death.

[17] Blake claims that he and Lorne always had an acrimonious relationship. He says that Eleanor was angry about the way Lorne funded his own lifestyle and that of Cody, to Blake’s detriment. He says that Eleanor and Roslyn had a bad relationship over certain business matters, for more than 5 years prior to Eleanor’s illness.

[18] Blake, to support his position, relies on what Eleanor had directed under her earlier Wills. He was appointed sole trustee and beneficiary under Eleanor’s Will dated May 21, 2008. That Will was revoked by later Wills dated December 12, 2008, where Blake and Cody were appointed as estate trustees, and in which she directed that the residue of her Estate was to be divided equally between them. Blake then claims that Eleanor signed a “holograph Will dated May 4, 2009”, by which she revoked her Decembers 12, 2008 Wills and then revived her May 21, 2008 Will. This latter document is a letter of that date to Ms. Rintoul, in Eleanor’s handwriting, and signed by her.

[19] Blake says that Eleanor told others, including her accountant on October 7, 2010, that she had recently signed a new Will saying that Blake would receive her entire estate. Blake says she wanted Jordan Lipson to be the estate trustee. Blake says Eleanor wanted him to “have a good life” because Lorne “…financially supported Cody’s extravagant lifestyle.” There is no evidence that such a “new Will” ever existed.

[20] Blake relies on the fact that Eleanor died from brain cancer and says she was not capable of making rational decisions when she signed her 2011 Wills. He says she would repeat words spoken to her. Dr. Bezjak, Eleanor’s Oncologist, says that a brain scan MRI done in mid-September 2010 did not show any brain metastases, “although cancer cells may have already been present at a microscopic level”. By the time a CT and MRI brain scan were done on March 15/17th, 2011, it showed “numerous brain metastases”. He says it is impossible to say exactly how long they were there.

[21] Blake denies having received a copy of the 2011 Wills prior to September 9, 2011. He claims he spoke to Ms. Rintoul and Mr. Detsky (Eleanor’s accountant) about this and sent e-mails on August 11, 2011 and August 25, 2011. He denies having received them by courier on or about July 12, 2011, as alleged by Roslyn and Herb. He says there is no direct evidence in this regard. He claims he did not receive a copy of the Certificate of Appointment of Estate Trustees until January 23, 2012. He says there is no evidence that he told any of Roslyn, Lorne or Cody that he would not challenge the April 2011 Wills.

[22] Blake acknowledges that he did receive the proceeds from the sale of the Burton residence. He agrees he did make the loan to Alros, that he did receive personal effects and art, and that he did receive the proceed from the sale of the Condo in California. He accuses Lorne of having forged Eleanor’s signature on certain documents regarding her business interests. He acknowledges Roslyn provided him with copies of Eleanor’s previous Wills.

[23] Blake says he had no significant income at the date of Eleanor’s death, although he had a son and wife to support. He says after Eleanor’s death he became “completely reliant on Lorne…to pay his card bills, which Lorne stopped doing in March 2012.” He now says he had to accept the proceeds of the sale of the house. He claims Lorne gave the instructions to Ms. Rintoul to make the new Wills. He claims Roslyn assured him that he would not need to challenge the April 2011 Wills because she would take certain steps to require Lorne to resign from all his positions and repay certain monies. He says Roslyn warned him to be closely involved in all the sales of the assets going to him because, “Lorne would try to find a way to steal the proceeds of the sale…”. Roslyn denies making these statements.

The Position of the Respondents

[24] The Respondents say that Blake’s challenge of the validity of Eleanor’s Wills comes too late and is statute-barred, pursuant to the terms of the Act. In the alternative, they say that Blake is estopped from pursuing this challenge on that basis that it is barred by virtue of the equitable doctrines of estoppel by convention and estoppel by representation.

[25] Roslyn and Lorne point to the evidence that they have provided which shows that Blake knew the contents of the 2011 Wills and received copies of them, which were sent to him via Purolator courier on July 12, 2011, through the services of Polytarp on July 12, 2011. They have also provided other evidence that shows Blake knew the contents of the Wills and acted on that evidence long before he brought on his Application, as noted in the background facts set out above in these Reasons.

[26] Blake did not attend Eleanor’s funeral in Toronto, where he would have been in a perfect position to request copies of the Wills. He knew, from Roslyn, that Eleanor had made new Wills in 2011. He was her main beneficiary in both Wills, except for the residue clause where it was divided between Blake and Cody. The residue in the Secondary Will included her preference shares in Ellieco. They also point to the fact that Blake had consulted a lawyer in August 2011, and realized on the specific bequests he received under the Wills. Further, Blake received independent legal advice when he lent the money to Alros so that the taxes could be paid in the Estate. He also signed corporate documents regarding some of Eleanor’s corporate assets in late July 2011.

[27] They point to the fact that the April 2011 Wills are only marginally different from Eleanor’s 2008 Wills. The new Wills take into account the 2009 Trust that Eleanor settled after her 2008 Wills were done. Blake spoke to Ms. Rintoul about 2 weeks after Eleanor’s death about getting legal advice, and she gave him the name of 3 lawyers. He contacted none of them.

[28] Lorne says that almost immediately after Eleanor’s death, he spoke to Blake by telephone and told him that he and Roslyn were the Estate Trustees. Blake admits in his first Affidavit that in June 2011, he was “terrified” to know that Lorne, his father, was in control of his finances and might re-direct his inheritance, including the proceeds of the sale of the 44 Burton residence. Lorne, in fact, had revoked his spousal rights to 44 Burton, as a matrimonial home, on October 6, 2010, and he and Roslyn say that Blake knew this. Ms. Rintoul also confirmed to Blake that Roslyn and Lorne were the Estate Trustees.

[29] Blake admits that he first contacted the law firm of Robins, Appleby in August 2011 to deal with his “angst” about the Estate. That law firm received a copy of the filed probate application in the Estate and the Certificate of Appointment of Estate Trustee with a Will of the 2011 Primary Will in January 2012. In that month, Ms. Rintoul sent Blake further copies of the 2011 Wills as well as copies of prior Wills.

[30] Roslyn denies that she told Blake to wait to make his Will challenge until after the Burton residence and the Condo in California were sold.

[31] The Estate Trustees say that even though Eleanor had sent a handwritten note to Ms. Rintoul in May 4, 2009 rejecting her December 2008 Wills in favour of the May 2008 Will, Ms. Rintoul told her each time these handwritten notes were received, they did not revive an earlier Will. They say that Blake knew that it was Rintoul’s position that only the 2011 Wills were valid.

[32] Lorne, in his Affidavit, says that Blake moved to California around 2004, and that he had provided him with a monthly allowance over those years that amounted, in total, to approximately $1,285,000. In addition, Lorne says that Eleanor sent an allowance to Blake for over 7 years that totalled approximately $525,000. Lorne says he continued to send Blake $12,000 per month from Eleanor’s Estate after her death, which was separate from what Lorne was personally sending Blake. That money came from Ellieco, says Lorne, which he and Roslyn controlled as Estate Trustees.

[33] Lorne and Roslyn point to all of the monies Blake received under the terms of the 2011 Wills from the date of Eleanor’s death until he made his Application including the Burton residence sale and the California condo sale. All Eleanor’s works of art went to him and he and Cody divided her personal effects.

Analysis

[34] I am satisfied, on the evidence before me, that Blake received copies of the 2011 Wills on July 12, 2011 by Purolator, as sworn to by the Estate Trustees. On July 27, 2011, he signed documents in connection with 1352584 Ontario Ltd., in his capacity as a Trustee of the The Eleanor Leibel Family Trust 2009, together with Lorne and Roslyn as the Estate Trustees. The Copies of the Purolator documents attached to Roslyn’s Affidavit, dated July 12, 2011, are addressed to Blake at his California address and were sent through Polytarp Products, in an Express Envelope, with the drop off Locator shown as Blake’s “Front Door”. Since Blake denied receiving this package, other copies were sent to him long before he made his Application. It is Lorne’s evidence that Cody told him that Blake received a Purolator package from Polytarp’s offices via Purolator courier on July 12, 2011.

(a) The [Limitations Act, 2002](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html)

[35] In my view, the provisions of the Act apply with respect to Blake’s Application being outside the limit under the Act. Section 4 of that Act states:

Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

and Section 5(1) states:

A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Subparagraph 5(2) of the Act, says that a person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[36] Since a Will speaks from death, namely June 4, 2011, Blake’s Application is out of time under the Act. No steps were ever taken by Blake to extend the period under the Act. All Blake’s actions and his receipt of the proceeds of various bequests to him, were steps which said to the Estate Trustees that Blake accepted the terms of the 2011 Wills.

[37] Blake had legal advice when he lent the monies to Alros, so that the taxes could be paid in the Estate. He knew that there were no large amounts of cash available in the Estate. He knew that one of Eleanor’s assets would have had to be sold, in order to raise the money to pay CRA. The sale of the residence by the Estate Trustees for Blake, allowed him to have some money within the first year of Eleanor’s death. He agreed, on legal advice, to advance some of that money to Alros, a corporate entity under the Ellieco corporate umbrella, to pay those taxes.

[38] Although subsection 16 (1) (a) of the Act says there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought, Blake’s will challenge claims consequential relief in that it asks for an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will issued to Roslyn and Lorne, asks for an Order removing them as Estate Trustees, asks for an Order that they pass their accounts as Estate Trustees, and for an Order appointing an Estate Trustee During Litigation. In addition, Blake asks for declarations relating to the revocation of Eleanor’s December 12, 2008 Wills and for an Order in damages in negligence against Ms. Rintoul and her law firm, and for Orders disclosing Eleanor’s medical records and her legal records. Consequential relief is clearly sought by Blake.

[39] In applying the “discoverability principle,” Blake had the knowledge to commence a will challenge on or before July 31, 2011. By that date he knew the following facts:

(a) Prior to Eleanor’s death Blake knew that Eleanor had recovered from lung cancer but now had brain cancer.

(b) He knew Eleanor had changed her previous Wills.

(c) He knew the date of Eleanor’s death, as Lorne had called him and Cody on that date.

(d) He received copies of the Wills prior to July 31, 2011, and he knew who the Estate Trustees were under the Wills.

(e) He knew what Eleanor’s assets were. He had at least a sense of her income, as she had been sending him monthly cheques before the date of her death and had a sense of the value of her assets.

(f) He signed corporate documents for a company now owned by her Estate prior to July 31, 2011.

(g) He had communicated with Ms. Rintoul about his concerns and she gave him the names of three estates counsel to consider, as independent legal advisors.

Blake, therefore, had all of the information needed to begin a will challenge. He chose, instead, to take many of his benefits under the Wills before he commenced his Application.

[40] Blake takes the position that there is no limitation period in respect of a will challenge or in the alternative, that the will challenge was brought within any applicable limitation period. He points to the fact that his counsel wrote to Ms. Rintoul on February 7, 2012, that there appears to be good reason to question the validity of the Wills. He asked to meet with her to further discuss the issue but did nothing to book such meeting. Blake’s counsel, at that point, could easily have filed an Application but did not do so.

[41] Blake says that he never told Lorne and Roslyn that he would not challenge the Will. There is no legal or moral obligation on any beneficiary to say that he or she is not going to challenge the Will before the Estate Trustees can move on the administration of the Estate. They can act immediately on the day after Eleanor’s death.

[42] Blake says that he was not asked to sign “…any acknowledgement as to the validity of the April 2011 Wills.” Again, there is no obligation on the Estate Trustees to obtain such an acknowledgement. They accepted his directions to sell the Burton residence and the California condo.

[43] Blake says that the July 31, 2012 Agreement respecting the loan to Alros, although mentioning the Will, does not give the date of the Will. The missing date does not invalidate the Agreement, since the Estate Trustees had already been acting on those Wills since the date of Eleanor’s death.

[44] Blake points to previous orders made by this Court in connection with the Estate. On November 21, 2013, Mr. Justice Morawetz made an Order Giving Directions in this litigation. The parties were ordered to serve their Motion and Reply materials with respect the limitation period and equitable relief being sought, with the Motion set down to be hear on February 28, 2014.

[45] Madam Justice Mesbur on November 27, 2013, made a further Order for Directions respecting the production of documents. She said that paras. 5 to 11 of the Order would only come into force and effect if the Respondents’ Motion, supported by Affidavit evidence, had been dismissed and all related appeal periods had expired or any appeal had been finally disposed of by the court of competent jurisdiction, and one of 2 trust companies named had filed a Consent to act as the Estate Trustee During Litigation. The relief sought in paragraphs 12 to 24 of the Order also would only come into force and effect upon the filing of an Affidavit to confirm that the Motion had been dismissed and all related appeal periods have expired or any appeal has been finally disposed of by the Court of competent jurisdiction.

[46] Given the terms of these Orders, it is Blake’s position that the Respondents’ Motion is in the nature of a Motion to Strike, which Blake says is equivalent to a Motion for Summary

Judgment. He says that the Court should apply Rule 20.04 and determine if there is a genuine issue requiring a trial. He says there is no limitation period for a claim for a declaration pursuant to section 16(1)(a) of the Act. In the alternative, he says that sections 4 and 5 of the Act do not bar his will challenge, since such a challenge does not necessarily commence on the date of the testator’s death. He says there are material facts in dispute and that the Respondents’ Motion should be dismissed and the issues should proceed to Trial.

[47] Blake relies on statements made in Oestreich v. Burnnhuber, [2001] CarswellOnt 273 (S.C.J.) at para.17 regarding the then Limitations Act. There the Court said that the Act did not relate to the declaring of a will to be valid or invalid, pointing out that the beneficiary who delays in attacking the will runs the risk that the assets may have already been distributed. Blake says he does not seek that relief, but fails to say that is only because he already has all those other assets (except for any personal effects that Cody may have received.).

[48] Blake says that the relief he seeks is not “consequential” because it all only takes place following a declaration that the 2011 Wills are not valid. I disagree with Blake’s position. The consequential relief he claims cannot come either before or after a declaration, as a declaration is a stand-alone Court decision.

[49] Blake also seems to say that since only the Primary Will was probated and not the Secondary Will, it is still open to him to challenge that Will, if he is unable to challenge the Primary Will. If that were the case, the Estate Trustees may then have to go to Court to probate the Secondary Will and pay all the probate fees in relation thereto from the residue of the Estate, which in that Will, because, as in the Primary Will, divides the residue in it also equally between Blake and Cody. In my view, both Wills would have to be challenged as they were made at the same time and signed by Eleanor, one after the other. If one was held to be invalid then the other would also be invalid.

[50] In my view, the date from which the limitation under the Act began running, was the date of Eleanor’s death, June 4, 2011. See: Lawless v. Anderson, 2011 CarswellOnt 626 (C.A.) paras. 22 and 23 respecting the discoverability principle and how it is applied by the Court. As was noted by Mr. Justice D.M. Brown, at first instance in that case, at para. 58, 2010 ONSC 2723, “Limitation periods do not begin to run when one determines that a claim is winnable or viable; they begin to run when one discovers the material facts necessary to plead a reasonable cause of action.” Blake had enough material facts by July 21, 2011 to commence an action.

[51] It seems to me that Blake, by early September 2013, decided that he had not received enough benefit under Eleanor’s Wills and he did not want to share the residue with Cody. He therefore launched his Application.

[52] In my view, with the passage of the new Act in 2002, the Legislature placed a two-year limitation on the bringing on of actions, subject to the discoverability principle, in order to prevent exactly what Blake is trying to do, that is, circumvent the limitation by claiming, late in time, that the 2011 Wills were invalid. To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation.

[53] Blake’s Application dated September 5, 2013, is more than two years after Eleanor’s death and I find it to be statute-barred.

(b) The equitable doctrines

[54] If I am wrong in finding that Blake’s claim is statute-barred, in my view he is also estopped from bringing his will challenge based on the equitable doctrines of estoppel by convention and estoppel by representation.

[55] It is the position of the Moving Parties that there is “a significant overlap in the factual ingredients that support each form of these two forms of estoppel. They say that these forms should be treated together. I agree with their position in that regard.

[56] The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 SCR 53. In paragraphs 53 and 54, the Court sets out how the forms of estoppel have been established in law. It quotes from Spencer Bower P.180 in para. 54 as follows:

An estoppel by convention, it is submitted, is an estoppel by representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent. This form of estoppel is founded, not on a representation made by a representor and believed by a representee, but on an agreed statement of facts, or law, the truth of which has been assumed, by convention of the parties, as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to resile from the agreed assumption, then he will be entitled to relief against the other according to whether the estoppel is as to a matter of fact, or promissory, and/or proprietary.

[57] The Court, then, in para. 59, said that the following criteria form the basis of the doctrine of estoppel by convention:

(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

[58] With respect to estoppel by representation, the Moving Parties rely on the Supreme Court of Canada’s decision in Canadian Superior Oil Ltd. v. Hambly, 1970 3 (SCC), [1970] S.C.R. 932, [1970] S.C.J. No. 48, which set out in para. 19, the factors giving rise to estoppel. They are:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part the person to whom the presentation is made;

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made;

(3) Detriment to such person as a consequence of the act of omission.

[59] It is to be noted, however, that estoppel by representation cannot arise from silence unless a legal duty is owed by the representor to the representee to make the disclosure. See: Ryan v. Moore, 2005 SCC 38 at para. 76.

[60] How then do these estoppel principles apply to this case? Blake knew of Eleanor’s health issues before she died. He knew she had brain cancer. He knew that the 2011 Wills were prepared by her long-time solicitor and counsel, Ms. Rintoul. He wrote to her to express his worries about the administration of Eleanor’s estate, now that Eleanor’s separated husband, Lorne, and her sister, Roslyn, were the Estate Trustees. He did not act on his concerns by contacting any one of the three estate experts, whose names Ms. Rintoul had given him.

[61] Blake needed money. The evidence shows that both of Lorne and Eleanor were sending him money to continue to live in California in a home that had also been provided by Eleanor’s largesse. He knew that Lorne had signed off on Eleanor’s Burton home in October 2010, so Lorne had no claim against it. Blake wanted that home sold as quickly as possible so it was listed for sale in 2011. It was a specific devise to Blake under the 2011 Primary Will. The Estate Trustees knew that since the Estate was an outright distribution, they had the “Executor’s Year” within which to administer the Estate and pay the taxes on the Terminal Income Tax Return to the date of death. They worked a deal with Blake, who had the only immediate available cash in the Estate, to advance monies so they could pay the taxes. He lent that money to Alros to lend to the Estate, on the advice of independent counsel.

[62] Blake therefore accepted the terms of the Wills and acted upon those terms, not just once but 4 times, when he sold the house, sold the California condo, took the art he wanted, and divided various household goods and personal effects, and signed the corporate documents. Thus, all the parties involved took steps based on the shared assumption that the Wills were valid. Their mutual conduct shows this. Blake was silent about litigating anything in connection with the Wills until September 2013, although his lawyer had contacted the Estate Trustees in early February 2012. The Estate Trustees acted in reliance of this shared assumption, paid the taxes, and did not apply for an Income Tax Clearance Certificate, as there were still unadministered corporate assets to be divided between Blake and Cody under the Wills.

[63] Blake should not be allowed now to resile from all of the actions he took during the two-year period after Eleanor’s death. As Mr. Justice Brown said, in Lawless, supra, a prospective litigant cannot wait until he or she determines that a claim is winnable or viable.

[64] Blake’s conduct, in my view, induced the Estate Trustees to continue the administration of the Estate, since they had no legal document to show that Blake was in any way objecting. They organized the payment to CRA to stop any penalties and interest from running on the amount owing. They placed themselves in a precarious position, not knowing that Blake would later want Orders removing them as Estate Trustees, accusing them of improper conduct and accusing Ms. Rintoul of negligence. They took a course of making distributions to Blake out of the Estate before receiving an Income Tax Clearance Certificate, for which they possibly could be personally liable.

[65] In Hayes v. Montreal Trust Co., 1977 CarswellBC 69 (B.C.S.C.), the Court said in para.8, that a plaintiff:

“… accepted what was done and co-operated with the executor for over a year in administering the estate in according with the will to the point where all legacies have been paid, the life interest has terminated and all that remains is distribution to the residual beneficiaries.”

[66] Blake took no steps until September 2013 to challenge the Will. He co-operated with the Estate Trustees in administering the Estate for over 2 years to the point where all that remains to be done is to divide the residue between him and Cody, which he now opposes.

[67] In my view, whether one says that Blake is estopped from taking the position he now has by estoppel by convention or estoppel by representation, he falls within both categories, given the facts of this case. Blake had counsel in February 2012, who stated there was an issue regarding Eleanor’s capacity to make the 2011 Wills but never took the legal step to go forward with any challenge. Is this silence? Did Blake receive legal advice that he should or should not move forward? The fact remains that nothing happened and the administration of the Estate continued in legal silence until the Application was finally made.

(c) Proof of Will in Solemn Form

[68] Blake says he is not estopped from challenging the validity of the 2011 Wills, since the law places a very high onus upon the proponent of the Will. He says he is entitled to proof of the Will in solemn form, notwithstanding that he has already received most of the benefits to which he is entitled. Blake says he has been deprived of the opportunity to adduce evidence or to cross-examine the Respondents on the validity of the 2011 Wills. To deprive him of that opportunity, he says, would be unfair and prejudicial to him. He relied on statements made in the Saskatchewan case, Allan v. Hodgins Estate [1974] CarswellSask 147 (S.C.Q.B.) at paras. 4, 6 and 7, as cited in Bermingham v. Bermingham Estate [2007] CarswellOnt 2033 (S.C.J.) at para. 51.

[69] In Bermingham, supra, Mr. Justice Perell also cited the passage from Macdonell, Sheard & Hull on Probate Practice (4th ed.) at 317 about the next-of-kin’s entitlement to have the will proved in solemn form, even though they have received a legacy under the Will. There the authors say:

Long acquiescence unexplained, and the absence of circumstances of suspicion as to the validity of the will, may amount to a waiver of rights of the next-of-kin. Hoffman v. Norris (1805), 2 Phill. Ecc. 230n, 161 E.R. 1129; Braham v. Burchell (1826), 3 Add.243 at 257, 162 E.R. 468. But whether there is a waiver of the right or not will depend upon the circumstances.

In the case before him, Perell, J. did not find this reference to be helpful, noting that it does not speak to the modern requirements of rules 75.04 and 75.05. He refers to 2 Ontario cases that were decided prior to the new Act but did not find either helpful to him.

[70] It is clear that the circumstances of the case must be carefully examined, as there is no case on point. This is not a will challenge by a stranger to the beneficiaries, who suddenly appears as a major beneficiary in the will. It is not a case where one relative, who inherited the deceased’ residence, had spent years looking after the deceased, while other next-of-kin ignored the testator while he was alive. This is also not the case where a fiduciary has ingratiated himself or herself with the deceased and received benefits that should have gone to the next-of-kin. This is a case of one son thinking he was more entitled than his brother to receive all their mother’s assets at death.

[71] I adopt the wording of Perell, J. in para. 54 of Bermingham, supra, as follows:

In reviewing the above cases about the doctrines of laches, acquiescence, of waiver in the context of a late arriving claim to have a Will proved in solemn form, I note a judicial reluctance to employ these doctrines to preclude proof of the Will in solemn form because it is a sound policy to have the validity of a Will scrutinized when there are any suspicious circumstances or there is a reasonable doubt about the testamentary capacity of the testator or testatrix. The immediate case, however, is one in which the Will itself is a sensible and fair one and the applicant for proof of the will in solemn form had the benefit of notice and of legal advice and stood by for eight years and now she offers very little, if anything, to support her challenge to the validity of the Will.

[72] Here, Eleanor’s Wills are both sensible and fair. She had two sons and treated each equally with respect to the shares of her private company. There are no suspicious circumstances surrounding the making of the 2011 Wills. When people know they are ill and may be facing surgery or treatment, they often decide to “put their affairs in order.” That is exactly what Eleanor did. She knew that each of Blake and Cody had houses in California that had been provided to them. She gave Blake more than Cody perhaps because she had raised him, while Lorne raised Cody after the age of 12. She exercised her power of appointment under the terms of her family trust, to benefit each of them.

[73] In my view, there is no absolute right of a beneficiary or next-of-kin to have a Will proven in solemn form. Each case must stand or fall on its own circumstances.

Conclusion

[74] Blake’s challenge to Eleanor’s 2011 Wills is dismissed, firstly since it was not commenced until after the two-year limitation imposed under the Act. If I am wrong in that regard, it is also dismissed based on the doctrine of estoppel by convention and estoppel by representation.

Costs

[75] If the parties cannot otherwise agree on Costs, they shall provide me with written submissions no longer than 3 pages in length plus time dockets plus a Bill of Costs and any case law referred to by them. Since the Respondents were successful on their Motion, they shall serve Blake with their documents plus a Bill of Costs within 30 days of this Order by sending it to me at the Court House care of Judges’ Administration, 361 University Avenue, Toronto, 1st floor. Blake shall have 7 days thereafter to respond, followed by any Reply that the Respondents think is necessary, 7 days thereafter.

Greer J.

Released: August 12, 2014

COURT FILE NO.: 01-3272/11
DATE: 20140812

ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST

BETWEEN:

BLAKE LEIBEL, in his personal capacity and BLAKE LEIBEL, JORDAN LIPSON and COREY LEIBEL, in their capacity as Trustees of The Eleanor Leibel Family Trust 2009

Plaintiffs
(Responding Party on the Motion)

– and –

ROSLYN LEWIS, HERB LEWIS,

CHITEL ENTERPRISES LTD.,

1352585 ONTARIO LTD., ALROS PRODUCTS LIMITED, LORNE LEIBEL, CODY LEIBEL, 1352585 ONTARIO LTD., BLAKE STAR HOLDINGS INC. and LEE CORP. INC.

Respondents
(Moving Parties on the Motion)

ENDORSEMENT

Greer J.

Released: August 12, 2014