BETWEEN:

Steven Timothy Bryant

Moving Party

– and –

Peter Best, Estate Trustee During Litigation

– and –

Lynette Burton

– and –

Sarah Bryant

Responding Parties

Moving Party, Self-represented

R.J. Leblanc, for the Estate Trustee During Litigation, Responding Party

L. Poratto-Mason, for Lynette Burton, Responding Party

K. Bales, for Sarah Bryant, Responding Party

HEARD: January 6, 2015

DECISION ON MOTION

GAUTHIER, J.

The Motion

1Steven Timothy Bryant (“Steven”) is seeking the following relief:

a. This honourable court to use all powers and discretion it has to bring Lynette Burton before this court, forcing her to finally comply with the order issued January 17th 2014 paragraph 10(a), 10(b) personal effects, 10(c), 10(d), 10(e), 10(f) and10(g).

b. An order obligating the estate trustee of the Estate of the Late Timothy Robert Bryant to collect a reasonable amount of documents containing the initials and signatures of the late Timothy Robert Bryant from reliable financial and legal institutions such as banks and or insurance companies and send said initials and signatures along with the will dated June 24th 2008 to be authenticated by a professional company of forensic analysis to be chosen by Steven Bryant.

Authentication shall include that the signature and all initials belong [sic] to Timothy Robert Bryant, that there is pen on paper and that ink dates back to June of 2008.

c. An order nullifying the agreement reached during mediation held by Justice Poupore on the 13th of June, 2014. The agreement is between Steven Bryant, Sarah Bryant, Peter Best and Lynette Burton.

d. An order authorizing and obligating the Estate Trustee to produce all documents, bank statements, receipts and any other information relating to the estate of the Late Timothy Robert Bryant to all beneficiaries.

e. An order immediately removing Mr. Peter Best as Estate Trustee During Litigation (E.T.D.L.). Further to that Mr. Best will return all payments received from the estate for any and all services that were provided by him after April 28th 2014. Also that Mr. Best provides a copy of any and all correspondence in his possession, including emails and fax communications he has sent and received acting as E.T.D.L. to the newly appointed Estate Trustee.

f. An order immediately removing Mr. Peter Best as Director of TimPaq Holdings Inc. business number 862717287 RC0001. Also Mr. Best will provide a copy of all communications he has sent and received acting as Director of TimPaq Holdings Inc.

g. An order placing Sarah Bryant as Estate Trustee.

h. An order forcing the relinquishment of all possessions and personal effects of the late Timothy Robert Bryant and TimPaq Holdings Inc. from Lynette Burton and such items to be collected and left in the care of the Estate Trustee.

i. Attributing the costs of this motion to Mr. Best and Lynette Burton personally, forthwith and on a substantial indemnity basis.

j. Such other relief as this Honourable Court deems just.

2Steven’s request for removal of Peter Best as estate trustee should have proceeded by way of application in accordance with Rule 14.05(3)(c) of the Rules of Civil Procedure ad the provisions of subsection 37(3) of the Trustee Act.

3I agreed to hear the matter notwithstanding this procedural irregularity.

Facts and History of the Proceedings

4Timothy Robert Bryant (“Timothy”) and Lynette Burton (“Burton”) had been common law spouses for 18 years when Timothy died on April 9, 2013. At the time of his death, Timothy and Lynette were residing at 110 Lady Ashley Court in the City of Greater Sudbury. Title to the residence was in the name of TimPaq Holdings Inc. (“TimPaq”), the shares of which were in the name of Timothy. TimPaq was a holding company which purchased and sold real estate and managed revenue properties owned by it. Lynette was employed by TimPaq from 2002 until after Timothy’s death.

5According to Lynette, she was the previous owner of 1059 Woodbine Avenue, Sudbury, having purchased that property in November 1997. She and Timothy occupied that property together from June of 1998 until it was sold in December 2012. Lynette had transferred the title of the Woodbine property from herself to herself and Timothy during their cohabitation in that property.

6Lynette’s evidence is that the proceeds of the sale of the Woodbine property, that is $106,828, were used to (a) pay out a TimPaq debt to the Canada Revenue Agency, and (b) to purchase the Lady Ashley Court property.

7Timothy has two adult children from a prior union: Steven and Sarah. There are no children from the union of Timothy and Lynette.

8While Timothy and Lynette were still residing at the Woodbine property, Timothy executed his Last Will and Testament. He did so on June 24, 2008.

9In his will, Timothy appointed his spouse Lynette as the executrix and trustee of his estate; the alternate executrix and trustee was Sarah.

10In addition to bequeathing to Lynette whatever vehicle he owned at the time of his death, Timothy also provided that “In addition to her residuary bequest of one third of my estate, transferred to LYNETTE BURTON will be our jointly owned home and our RRSPs.”

11The will provided further that the residue of Timothy’s estate would be transferred in equal shares to Lynette, Steven, and Sarah.

12Timothy’s funeral arrangements were taken care of by the Cooperative Funeral Home in Sudbury at a cost of $9,897.81, initially borne by Lynette. The invoice from the funeral home indicates that Timothy’s cremated remains and personal effects were to be collected by Lynette or Robert (Timothy’s brother) or Lynn (Timothy’s sister).

13On June 12, 2013, Lynette filed an Application for Certificate of Appointment of Estate Trustee With a Will. The application indicated that Timothy had personal property valued at “Nil” and real estate valued at $642,000.

14Steven filed a Notice of Objection indicating his opposition to the issuing of a certificate of appointment of estate trustee to both Lynette and Sarah.

15On September 19, 2013, Steven executed a document indicating that if, within 15 days of the execution of the document, Lynette and Sarah filed a joint application for appointment of estate trustee, he would withdraw his objection. No such joint application was ever made.

16Steven raised the issue of the validity of Timothy’s will, on the basis of lack of testamentary capacity (undue influence), and claiming that the signature on the will was not Timothy’s.

17On January 17, 2014, and in response to a motion by Sarah for an order for the court’s assistance with regard to Timothy’s estate, the court made the following Order Giving Directions:

THIS COURT ORDERS that PETER BEST is hereby appointed as Estate Trustee During Litigation (“ETDL”), without security, of the Estate pending the final resolution of the within litigation and that a Certificate of Appointment of Estate Trustee During Litigation is [sic] be issued to PETER BEST subject to the filing of the necessary supporting application.
THIS COURT ORDERS that subject to further review by the court, if necessary, the ETDL shall receive out of the assets of the Estate, reasonable compensation which shall be calculated on the basis of $400.00/hour subject to review of final accounts by the Court. Peter Best shall be entitled to pre-take his compensation.
THIS COURT ORDERS that the ETDL be and is hereby authorized to exercise those powers given by law to an administrator including such powers under the Estates Act, R.S.O. 1990, c. E.21, as amended. Without limiting the generality of the foregoing, the ETDL is hereby specifically authorized to do the following:

(a) to gather and take full account of the assets and liabilities of the Deceased and of the Estate;

(b) to preserve and maintain the assets of the Estate;

(d) to obtain information, records and files to the assets and liabilities of the Deceased in the same manner and to the same extent the Deceased would have been able to do if he were alive;

(e) to obtain a real estate appraisal of any real property and a valuation from a Chartered Business Valuator of any private company shares comprising of assets of the Estate, if necessary; and

(f) to appoint and pay an agent or agents (including legal counsel) from the Estate and seek such assistance from time to time as the ETDL may consider necessary for the purpose of performing his duties hereunder.

THIS COURT ORDERS that all properties and assets forming part of the Estate, whether held solely by the Deceased or whether held jointly with the Deceased and any other person shall be and are hereby vested in the ETDL from the date of the Order Giving Directions herein. Such assets shall include, but shall not be limited to, the assets listed as Exhibit “E” of the Affidavit of Irene Lavoix, dated December 3, 2013.
THIS COURT ORDERS that with respect to the shares of TimPaq Holdings INc. (“TimPaq”) owned by the Estate, the ETDL shall have the rights of a shareholder in accordance with the provisions of the Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16.
THIS COURT ORDERS that the ETDL shall not make any distributions of the residue of the Estate without a further Order of this Court or the consent of the parties.

Production of Financial Records

THIS COURT ORDERS that the ETDL is entitled to the release of and to compel production of any and all financial records, banking records, tax records, and any and all records regarding the assets, liabilities, income and expenses of the Deceased from any financial advisor, bank, trust company, insurance company, accountant or other authority (the “Financial Records”) in possession, power or control over such records, to the same extent and in the same manner that the Deceased would have been able, if he were still alive. The ETDL will, upon receipt of the Financial Records, produce copies to Steven and to counsel for Lynette and Sarah. The costs and expenses incurred in relation to the production of the Financial Records shall be paid from the Estate assets by the ETDL subject to further order of the court in the first instance.
THIS COURT ORDERS that the ETDL is hereby entitled to compel production from CRA of all income tax returns, notices of assessment and reassessment and any other related documentation and information (the “CRA Records”) in the same manner and to the same extent as the Deceased would have been able, if he were alive. The ETDL will, upon receipt of the CRA Records, produce copies to Steven and to counsel for Lynette and Sarah. The costs and expenses incurred in relation to the production of the CRA Records shall be paid in the first instance from the Estate by the ETDL, subject to further order of the court.
THIS COURT ORDERS that the ETDL is hereby entitled to compel production from CRA of all income tax returns, notices of assessment and reassessment and any other related documentation and information for TimPaq (the “Timpag CRA Records) in the same manner and to the same extent as the Deceased would have been able, as if he were alive. The ETDL will, upon receipt of the CRA Records, produce copies to Steven and to counsel for Lynette and Sarah. The costs and expenses incurred in relation to the production of the CRA Records shall be paid in the first instance from the Estate by the ETDL subject to further order of the court.
THIS COURT ORDERS that Lynette shall provide to the ETDL the following:

(a) a statement of all assets and liabilities of the Estate, including name, address, telephone number and bank account number, which are known to her, together with any supporting documentation in her possession or control;

(b) a listing of all personal effects of the Deceased that existed on the date of death;

(c) a list of any and all assets she held jointly with the Deceased at the time of his death, including name, address, telephone number and bank account number (this is without prejudice to Lynette’s right to assert ownership by way of survivorship);

(d) an accounting of any and all receipts of cash, property and/or chattels she has received from Deceased during the period from January 1, 2012 to the date of death;

(e) an accounting of any and all receipts of cash, property and/or chattels she has receive from the Estate since the date of death;

(f) a list of all receipt of cash, property and/or chattels she has received indirectly as a result of the Deceased’s death, such as but not limited to Life Insurance, RRSPs, Pensions, etc.; and

(g) a list of all payments and/or distributions made from the Estate to third parties.

Waiver of Privilege

THIS COURT ORDERS that any claim of privilege, or the duty of confidentiality relating to the CRA Records, inclusive of any privacy regulations and legislation which may prohibit the obtaining of such information, and documentation in respect of the Deceased governed by the Personal Information Protection and Electronic Documents Acts [sic] (the “PIPEDA”) and the Personal Health Information Protection Act (the “PHIPA”), shall be and hereby is waived. This paragraph shall not operate to abrogate the rights of any person other than the Deceased.
THIS COURT ORDERS that Steven Bryant shall serve and file a motion for an order for directions directing the procedural steps to resolve his challenge to the Deceased’s will on or before February 21, 2014. In the event no such motion is brought, then Lynette and/or Sarah Bryant shall be at liberty to move to strike Steven’s notice of objection.
THIS COURT ORDERS that the issues are to be tried by a judge without a jury at 155 Elm Street, Sudbury, Ontario on a date to be fixed by the Registrar.
THIS COURT ORDERS that the parties are hereby granted leave to move for further directions as may appear advisable or necessary.
THIS COURT ORDERS that the costs of this motion and the within application shall be reserved to the trial judge.

18The assets referred to in paragraph 4 of the Order are the following:

110 Lady Ashley $250,000.00

In the name of TimPaq -250,000.00

Mortgage on property

Value nil

Vacant lot beside camp $ 60,000.00

In the name of Bryant $250,000.00

Mortgager registered against it

Value $ 60,000.00?

Frood Road $ 75,000.00

In the name of TimPaq $ 75,000.00

Mortgage

Value nil

Prete Street

In the name of TimPaq

Value $580,000.00

*Appraisal in file for Prete

Hunt Property

600 acres Timothy Robert Bryant

Gregory William Bryant

Patrick Joseph Burns

Part owner Timothy Robert Bryant

Tim’s Share $ 50,000.00

Hunt Camp

100 acres Roland Laforest 27.5%

Ronald Laforest 27.5%

Timothy Bryant 29.2%

Rob Bryant 15.8%

Value $ 12,000.00

19On April 4, 2014, Steven brought a motion seeking (a) to have Peter Best removed as estate trustee, (b) to have Sarah appointed estate trustee, (c) to force Lynette to comply with the Order of January 17, 2014, and (d) to have Peter Best pay costs of the motion and “all damages suffered” on a substantial indemnity basis. Steven’s Notice of Motion contained allegations of misconduct by Peter Best.

20According to Peter Best’s material, he was attempting to sell the Lady Ashley property in April and May, 2014, however, Lynette was resisting his efforts to list the property, claiming that she was the owner of the property.

21On April 30, 2014, Peter Best advised Lynette of his position that the Lady Ashley property was an estate asset and he terminated Lynette as manager of TimPaq based on his perception that she was in conflict of interest.

22On May 5, 2014, Peter Best brought a motion for (a) advice and direction from the Court that the Estate Trustee During Litigation was authorized to sell the real estate assets of TimPaq, (b) an order requiring Lynette to comply with paragraph 10 of the January 17, 2014 Order, and (c) an order for vacant possession of the Lady Ashley property. The motion material indicated that, in addition to Lynette frustrating Peter Best’s attempts to fulfill his duties and sell Lady Ashley, his attempts to fulfill his duties and to sell a TimPaq owned property located at 866 Prete Street, Sudbury, were being objected to by Steven.

23On May 12, 2014, Steven brought another motion requesting the immediate removal of Peter Best as estate trustee, the appointment of Sarah, the compliance with the Order of January 17, 2014 by Lynette, and the payment of costs and damages by Peter Best and Lynette. The motion materials include allegations of conflict of interest against Peter Best and criminal convictions for fraud and impaired driving against Lynette.

24On May 16, 2014, Lynette initiated two lawsuits: one against the Estate of Timothy Robert Bryant and TimPaq Holdings Inc. based on a claim of constructive trust and family venture, claiming an interest in the Lady Ashley property and other real properties owned by TimPaq; the second against TimPaq only, for damages for unlawful dismissal.

25On June 13, 2014, as a result of a judicial settlement meeting, the parties entered into the Minutes of Settlement that are the subject of Steven’s motion.

26Among other things, the Minutes provide that:

Lynette will be paid $25,000 in full satisfaction of all her claims in the actions, and for estate trustee compensation.
Lynette will be reimbursed the sum of $19,956.45 for estate debts previously paid by her.
The assets of TimPaq will be sold through the Sudbury MLS system and all other assets of TimPaq sold, and the cash paid out of TimPaq in the most tax efficient manner, as reasonably determined by the parties and their tax advisors.
Peter Best will continue to act as ETDL. Steven will withdraw his notice of objection and motions and Peter Best will be appointed estate trustee.
Peter Best will pay Richard Guy’s reasonable solicitor’s account for probating the will.
The 6 guns will be split 2-2-2. Each of Steven, Lynette and Sarah will be entitled to 2 guns. In any event, Steven will get the 4:10 - 22 “over and under” and the Remington 3:08, if they exist, otherwise Steven will get first choice of the two guns.
Steven will be delivered his grandfather’s wooden crossbow.
Sarah will get the pool table, at her expense.
Lynette will file notices of discontinuances for her two actions and remove her Certificate of Pending Litigation from the titles to the properties encumbered.
Steven, Sarah and Lynette will physically divide any balance of personal property. In the event there is no agreement the property will be sold.
Lynette will vacate 110 Lady Ashley Court by August 1st, 2014, and, in the meantime, cooperate in the efforts to sell it.
The ETDL is authorized to cause the steps of 866 Prete St. to be repaired, and to perform any other work to be done which in the opinion of the ETDL’s real estate agent will add value to the properties and make them more marketable.
All parties and their counsel will execute such further documents, Court consents and similar documentation so as to better carry out the objects and purpose of this settlement.
All parties will provide to the ETDL’s accountant such documents and information as he reasonably requires to complete all tax and accounting issues and matters as there may be with respect to winding up all tax and accounting matters relating to the deceased, Mr. Bryant, and TimPaq.
In consideration of the above and the below, but subject to the above actually occurring, the parties waive their claims against the estate, the ETDL and each other.
With respect to the deceased’s Manitoulin properties, the following parties shall have rights of first refusal, exercisable in writing within 60 days of notification that the properties are in the name of the ETDL and real estate letters of opinion have been obtained:

i. Lynette - 600 acre parcel

ii. Sarah, in trust for Priscilla - 250 acre parcel

iii. Sarah - the lot next to the camp

iv. Steven - the 100 acre parcel

The parties shall bear their own legal costs.
The ETDL will use his best efforts to obtain a copy of the contract for the deceased’s funeral home and to provide a copy of it, if obtained, to Steven.
The ETDL shall enquire of the deceased’s and TimPaq’s insurance broker and determine what, if any, insurance records or documents exist and are available for the period January 1, 2010, to date, and to obtain copies of same and provide same to Steven and the other parties.

27The Minutes of Settlement resolved Lynette’s wrongful dismissal and constructive trust actions. It also resolved Steven’s challenge to the validity of Timothy’s will.

28On November 18, 2014, Steven conducted a cross-examination of Peter Best, and, on December 11, 2014, he conducted a cross-examination of Lynette. The transcripts have been provided and form part of the material in support of Steven’s motion.

29The within motion, dated August 5, 2014 was initially returnable on August 15, 2014. It was adjourned from time to time and finally heard by me on January 6, 2014.

30The Sudbury real estate owned by TimPaq has been sold. The real estate referred to in paragraph 16 of the Minutes of Settlement (Manitoulin Island) remains to be dealt with.

Issues

A. Can the Minutes of Settlement be “nullified”.

B. Should Peter Best be removed as Estate Trustee During Litigation.

C. Should Sarah be appointed ETDL.

D. Can the court appoint another ETDL, as suggested by Sarah.

E. Can Lynette be compelled to comply with the January 17, 2014 Order.

Steven’s Position

31Steven raises a myriad of issues, not all of which are relevant to the merits of his motion. I will not mention all of them, but will touch on the majority of the complaints.

(a) Lynette intentionally excluded Steven and Sarah from retrieving their father’s ashes and personal effects from the funeral home.

(b) Neither Steven nor Sarah was invited to attend the laying to rest of Timothy’s ashes in Meldrum Bay.

(d) Lynette’s Application for Appointment of Estate Trustee contains false information: (i) the value of Timothy’s personal property being “Nil” and Lynette’s profession being described as “retired business woman”.

(e) Peter Best was in a position of conflict at the time of the June 13, 2014 judicial mediation and hid relevant information from the Judge who conducted the mediation.

(f) Steven still has not received the wooden cross-bow to which he is entitled pursuant to the Minutes of Settlement; the cross-bow he did receive is plastic.

(g) Peter Best undertook to the court that he would repair the stairs in one of the TimPaq owned buildings and failed to do so.

(h) Lynette has been overpaid by $2,500 by the estate. She was reimbursed the entire cost of the funeral, and, in addition, she collected $2,500 from the Canada Pension Plan.

(i) Lynette cancelled Timothy’s email account and deleted all of his emails.

(j) Peter Best refused to answer questions about his actions as ETDL, during the cross-examination.

(k) Peter Best was abusive to Steven. His actions were “lateral violence”.

(l) Peter Best has repeatedly refused to obtain and produce relevant documentation relating to the administration of Timothy’s estate.

(m) Peter Best withheld important information until after he was cross-examined.

(n) Peter Best failed to collect Timothy’s mail.

(o) Peter Best’s dealings with one of the Sudbury real properties were improper as he retained a realtor who was a personal friend of both Timothy and Lynette, after having stated that he would use an impartial agent.

(p) Peter Best failed to inspect the Lady Ashley property before Lynette moved out and removed virtually all of the contents of the residence.

(q) Peter Best’s office redacted important documents, ie the contract with the funeral home and the homeowners’ insurance policy.

(r) Peter Best failed to inspect the TimPaq owned motor vehicle and should have had the damage to that vehicle repaired before he sold it, in order to maximize the return on that asset.

(s) Peter Best failed to obtain a sufficient number of appraisals before selling the TimPaq owned real estate.

(t) Peter Best is incompetent, dishonest and biased in favour of Lynette.

(u) The Last Will and Testament of Timothy is not genuine. The signature purporting to be that of Timothy is not his.

(v) Lynette has hidden assets and refused to provide a list of Timothy’s belongings.

(w) Lynette has a criminal record and is a dishonest individual.

(x) Lynette’s Facebook post following Timothy’s funeral was cruel and heartless.

32In addition to the above complaints, Steven’s motion material includes allegations of impropriety against non-parties:

(a) Lynette’s prior counsel and his secretary took part in a conspiracy of “lies and deceit” in the creation of Timothy’s alleged Last Will and Testament.

(b) Steven and Sarah’s Aunt, Christine Bryant threatened Steven: if he didn’t allow Christine, Lynn Bryant, and Lynette to deal with Timothy’s estate, Christine would ensure that Steven’s grandmother never spoke to him again.

(c) Steven’s Godmother, Lynn Bryant, also threated him, destroying a very strong relationship in which Steven called his Aunt Lynn on her birthday for 30 years in a row without missing one year.

(d) Lynette’s current counsel made libelous statements about Steven.

(e) Lynette’s current counsel purposely delayed advising Steven that Lynette was not available on the date he had selected for her cross-examination, in order to cause Steven to lose the deposit he had given to the court reporting service.

(f) Lynette’s current counsel lied in her factum.

33Many of Steven’s complaints are unrelated to the issues raised on the motion, but rather are an expression of the enmity Steven feels towards Lynette, her counsel, Peter Best, and non-parties to this litigation.

Sarah’s Position

34Like her brother, Sarah makes a number of complaints against Peter Best, and supports Steven’s motion for the removal of Peter Best as ETDL. Whereas initially, she proposed that she should be the replacement trustee, by the time of the argument of the motion, Sarah proposed that The Canada Trust Company be appointed ETDL, and she had taken the steps required to secure Canada Trust’s consent to such appointment.

35Sarah submits that Peter Best’s handling of the estate has resulted in considerable delay and financial loss to the beneficiaries.

36Sarah suggests that, although she was dissatisfied with Peter Best’s performance as estate trustee, by June 2014 she “hoped and trusted that, going forward, he would fairly execute his duties as estate trustee.”

37Peter Best has continuously favoured Lynette over the other two beneficiaries. He accepted Lynette’s word, and failed to make his own inquiries about estate assets, despite being aware of the acrimony and distrust between Lynette, on the one hand, and Steven and Sarah on the other.

38Peter Best delayed in obtaining from Lynette the list of Timothy’s personal effects until the end of July 2014, during which time Lynette removed her “first choice” of Timothy’s personal property, including jewellery, appliances, furniture, etc. The end result is that Steven and Sarah received only used clothing and footwear and other items of little or no value. Steven and Sarah were denied the opportunity to obtain their fair two-thirds’ share of Timothy’s personal property.

39Peter Best did not act diligently in that he failed to inspect the Lady Ashley property before Lynette moved out. Steven and Sarah were not given an opportunity to inspect the residence before Lynette moved out.

40Sarah complains that Peter Best did not obtain three independent market valuations for each of the TimPaq owned real properties prior to listing them for sale, and he refused to do so despite Sarah’s requests.

41One of the subject properties, the Prete Street property sold for $850,000. The realtor on the sale “double-ended” the transaction by acting as both listing and selling agent. Peter Best failed to negotiate a more favourable rate of commission for the estate.

42Peter Best failed to take any steps to ensure that Lynette cooperated in the sale of the Lady Ashley property and delayed almost 6 weeks in having the property listed for sale.

43Like her brother Steven, Sarah complains about Peter Best’s choice of realtor for the sale of Lady Ashley.

44Peter Best failed to comply with paragraph 12 of the Minutes of Settlement by not repairing the stairs at the Lady Ashley property before selling the property. Sarah’s original material indicated that she believed this failure resulted in a lower price being obtained for the property. At the hearing of the motion, however, Sarah, through her counsel, conceded that the TimPaq owned properties had fetched fair market value.

45Notwithstanding the above concession, Sarah maintains that Lady Ashley could have sold for more than it did had Lynette not removed all the major appliances. The ownership of the fridge, stove, washer and dryer which were located in the Lady Ashley property continue to be in dispute. Additionally, the ownership and whereabouts of Timothy’s personal property continues to be a live issue and delays the administration of the estate.

46Both Sarah and Steven object to Peter Best’s position that each beneficiary will be required to pay to the estate the appraised value of the Manitoulin property each wishes to acquire. The estate has more than $850,000 in the bank, which will ultimately distributed amongst the three beneficiaries. This greatly exceeds the total value of all the Manitoulin properties and, in such circumstances, it would be reasonable to charge the value of each of the beneficiaries’ respective parcels against each beneficiary’s ultimate share of the monies in the bank.

47Peter Best neglected to communicate with the beneficiaries and keep them apprised of the steps he was taking in connection with the administration of the estate.

48Peter Best improperly interpreted Steven and Sarah’s inquiries of him as interference with his authority as ETDL.

49Sarah suggests further that the following furnishings belonged exclusively to Timothy: chandelier, wooden dining set, bed frame, bedroom dresser, leather sofa, and a futon that was purchased when Sarah was 14 years old. The bedroom and dining room sets were purchased by Timothy and delivered to Lady Ashley shortly before Timothy’s death.

50Peter Best refused to produce the bank and credit card statements which would have permitted Sarah to review them to confirm the purchase described above.

51Peter Best has continued to make things difficult for Sarah, causing her undue stress and driving up her legal fees.

52Peter Best threatened to sell the guns that she and Steven are entitled to, if arrangements were not made to properly retrieve them within an arbitrary deadline set by him, i.e. six months.

53Sarah raises concern over the fact that Peter Best did not provide details concerning offers and negotiations leading to the sale of the Prete Street property, or surrounding the repair or non-repair of the Lady Ashley property until his cross-examination, or even later in December 2014, subsequent to the delivery of Sarah’s Affidavit on this motion.

54Additionally, Sarah points out that Peter Best has failed to answer seven specific questions put to him on December 17, 2014, relating to the administration of the estate (i.e. whether the taxes owing under the final tax return had been paid, the status of TimPaq’s corporate tax filing, and the status of a mortgage registered against the title of the Manitoulin property that Sarah intends to acquire).

55The very poor relationship between Peter Best and two of the three beneficiaries is such as to make the estate trustee’s task of being fair and impartial with all three beneficiaries virtually impossible.

Lynette’s Position

56Lynette characterizes Steven’s motion as an abuse of process.

57Lynette opposes the claim for removal of Peter Best as ETDL, as he has all but wound up the estate. She seeks an Order to enforce the Minutes of Settlement entered into on June 13, 2014.

58Lynette has complied with all the terms of the agreed settlement of June 13, 2014, including moving out of her home to accommodate its sale, and consenting to the dismissal of both of her actions based on wrongful dismissal and constructive trust. She did so “on the strength of the Minutes of Settlement and the fact this matter was resolved.” As a result, Lynette is extremely prejudiced by Steven’s motion.

59Additionally, Lynette has delivered to, or made available, Timothy’s personal effects, including his guns, his boats, his company vehicle, and the pool table.

60Lynette and Timothy were long-time common-law spouses of each other. They both contributed time and effort into the home and contents at Lady Ashley Court.

61By way of his will, Timothy intended to leave to Lynette the Lady Ashley property, together with its contents.

62Lynette has complied with paragraph 10 of the Order of January 17, 2014.

63Steven’s continued actions in preventing the ETDL from winding up the estate has caused Lynette considerable hardship: she was terminated from the employment she had held for 12 years, and now, as she suffers from Multiple Sclerosis, she cannot secure new employment.

64Steven’s accusations about her character are untrue and unsubstantiated.

65Peter Best has conducted himself as ETDL most professionally, and he has performed his duties expeditiously, notwithstanding the continued personal attacks made against him by both Steven and Sarah.

66With regard to Steven’s cross-examination of Lynette, Steven served a Notice of Examination for Lynette’s attendance in Gore Bay on November 26, 2014, despite having been previously advised, in writing, of Lynette’s available dates for cross-examination, in Sudbury; November 26, 2014, was not one of them.

67Despite Lynette’s attendance for cross-examination, for a four hour period, on December 11, 2014, Steven, on December 12, 2014, proceeded with his motion to compel Lynette to attend for cross-examination. The presiding judge concluded that Steven’s motion had been unnecessary, given Lynette’s attendance for cross-examination the previous day, and awarded $500 costs against Steven.

Peter Best’s Position

68Peter Best opposes Steven’s request that he be removed as ETDL in the belief that such removal would not be in the financial interests of the beneficiaries.

69Peter Best denies any delay and that any delay on his part has caused any financial loss to the estate.

70Peter Best denies any intentional non-disclosure of any material facts in the mediation process, which he initiated, in an attempt to save money for the beneficiaries and to avoid significant delay and huge costs to the estate.

71The current motion is similar, in many respects, to Steven’s earlier motions of April and May 2014.

72The Sudbury properties have all been sold. Two of the three properties sold for the appraised value. The estate did not suffer any financial loss.

73The Frood Road Property: This property was appraised at $91,000, was listed at $96,000 and sold “as is”, on June 15, 2014, for the appraised value, after having been on the market through the MLS system, in accordance with the Minutes of Settlement.

74The Prete St. Property: This apartment building was appraised at $860,000. It was listed at $10,000 more than the appraised value. The highest offer received contained conditions and warranties, and provided for an $18,000 abatement in the purchase price for required repairs.

75The cost of the required repairs was estimated at between $30,000 and $40,000. This cost would have had to have been borne by the estate, and the repairs would have delayed the closing of the transaction.

76Peter Best sought the advice of the realtor, who recommended that the offer be countered at $850,000, with the purchaser being responsible for the repairs. He followed that advice and it was reasonable and prudent for him to do so.

77There is nothing unusual or sinister in the “double ending” which occurred in this transaction. When the listing agreement was signed, it was impossible to know or predict that a buyer would have an agent employed in the same office as the listing broker.

78With regard to the commission, Peter Best did, in fact, negotiate a 1% reduction in the usual 6% rate.

79The Lady Ashley Property: The stairs in the home were unfinished and the appraised value reflected this fact.

80The property was listed at $10,000 above the appraised value and went on the market on July 22, 2014. By August, no offers had been received, and it was determined that the unfinished stairs were negatively affecting the marketability of the property.

81Peter Best decided to proceed with having the stairs repaired, in an effort to secure an offer at or near the appraised value.

82An offer was received in the amount of $315,000 ($5,000 under list price, and $5,000 over appraised value), however, the offer contained a condition that the stairs and the fireplace be repaired. Peter Best considered that the cost to repair the stairs and the fireplace would exceed $5,000, and delay the closing, and therefore, again on the advice of the realtor, he decided that it was in the best interests of the estate to counteroffer at $310,000 and delete the repair condition, which counteroffer was accepted.

83With regard to the complaint that Peter Best’s decision to not obtain three appraisals for each of the properties was unreasonable or lacking in diligence, he responds that he believed and continues to believe that to obtain three appraisals as requested by Sarah would have been overly cautious, excessive, and unjustifiably costly to the estate. There is no practice of obtaining three appraisals as suggested by Sarah.

84In addressing the complaint about having retained the services of Paul Parent to sell Lady Ashley, Peter Bests responds that Jean Leblanc, whose specialty is commercial real estate, was the original listing agent for the property. He recommended that an agent whose specialty was residential real estate should be retained in his stead. Peter Best chose to retain Paul Parent, with whom he had had a 30 year professional relationship and who he regarded with high professional esteem. This was a reasonable decision on his part.

85The decision to not go ahead and repair the stairs at Lady Ashley was also reasonable in the context of the time and cost involved in doing so. Peter Best’s statement to Justice Poupore was “a true statement of my intention at the time”. He was not required to go back before Justice Poupore to explain the changed circumstances.

86Sarah’s evidence about the guns is misleading and incomplete. It omits Peter Best’s offer to deliver the guns to Sarah’s home, and the failure of both Sarah and Steven to be diligent in retrieving the firearms. Sarah has also made no efforts to retrieve the pool table she wanted, from the Meldrum Bay property.

87Peter Best denies having failed to obtain and provide documentation such as insurance policies and bank credit card statements.

88He provided the insurance documentation that he obtained from Brokerlink. He did not redact any portion of those documents.

89The request for the bank credit card statement to review the purchase of furnishings which had been purchased as far back as four years prior, was unreasonable.

90The contents of Lady Ashley (which would have been the subject of the review of such bank credit card statements) could reasonably be regarded as jointly owned property between Timothy and Lynette, given their long-standing spousal relationship. As well, Lynette would, in addition to any claim to one-half ownership of the chattels, also have a claim to one-third of the other half. Peter Best concluded that it was not in the best interest of the estate to expend time and money on chattels having little financial value.

91The provisions of the Minutes of Settlement have almost all been carried out. The only remaining item is the sale of the Manitoulin properties.

92Peter Best is not a director of TimPaq. He is the court appointed manager of TimPaq’s assets and affairs generally. Steven’s motion to remove him as a director of TimPaq must fail. Further, Peter Best denies any conflict between his duties as ETDL and his duties as manager of the affairs of TimPaq.

93Peter Best denies having favoured Lynette over Steven and Sarah. He not only forwarded stern communication to Lynette when she refused to cooperate with the realtor on the sale of Lady Ashley, he brought a motion against her.

94Peter Best has used his best efforts to administer Timothy’s estate in “as legally economical a manner as possible”, but he has been frustrated in this regard by both Steven and Sara.

95Peter Best acknowledges that he lost his self-control while he was being cross-examined by Steven, and that he did insult Steven. He has apologized, both in person, and in writing to Steven, who has accepted the apology. He further formally apologized to the court.

The Law

The Minutes of Settlement

96When parties have a mutual intention to create a legally binding agreement and have reached agreement on all of the essential terms of the agreement, they create a contract. Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.).

97A settlement agreement is a contract. Olivieri v. Sherman, 2007 ONCA 491.

98As was stated at paragraph 44 of Rawlins v. Rawlins, 2014 ONSC 5649:

A determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party’s subjective intention.

Removal of the ETDL

99The Trustee Act, R.S.O. 1990, c. T-23 provides, at section 37 for the removal of a Trustee:

37.(1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.

37.(3) The order may be made upon the application of any executor or administrator desiring to be relieved from the duties of the office, or of any executor or administrator complaining of the conduct of a co-executor or co-administrator, or of any person interested in the estate of the deceased.

100The court in Radford v. Radford Estate (2008), 2008 45548 (ON SC), 43 E.T.R. (3d) 74, 2008 CarswellOnt 5297 (S.C.J.) (at paragraphs 110 to 112 inclusive) held that:

(a) The choice of estate trustee should not be lightly interfered with;

(b) A clear necessity for removal must be established;

(d) The decision to remove is guided by the welfare of the beneficiaries;

(e) It must be established that the non-removal will likely prevent the trust from being properly executed;

(f) Removal is not intended to punish past conduct, but rather to protect the estate and the beneficiaries;

(g) If there has been delay, has it compromised the estate, and will it be repeated; and

(h) Friction alone is insufficient for removal. The issue is whether it would be difficult for the trustee to act with impartiality, not whether, in fact, he would/would not do so.

Analysis and Conclusion

A. Can the Minutes of Settlement be “nullified”

101The Minutes of Settlement of June 13, 2014, are a binding contract between all parties who executed the agreement.

102I borrow from paragraph 39 of Lynette’s Factum:

There is no question but that the first requirement for a binding contract (mutual intention to create a legally binding contract) was met: the Minutes of Settlement were drafted following a full day mediation with the assistance of Justice Poupore and in which all parties were represented by experienced counsel except for Steven Bryant, who chose to represent himself. It is also apparent that the parties intended to enter into a binding legal agreement to resolve all of the outstanding legal proceedings.

103Although Steven has chosen to proceed without counsel, there is no issue as to his capacity or his intention to enter into the Minutes of Settlement on June 13, 2014.

104The judicial mediation and the resulting settlement addressed all outstanding issues raised in the motions which were outstanding: (a) the validity of Timothy’s will, (b) the request for forensic examination of the will, (c) the request for removal of Lynette as estate trustee, (d) Lynette’s failure (or not) to comply with the January 17, 2014, order, (e) the request for additional documentation regarding the estate, (f) the request for removal of Peter Best as ETDL, (g) the request to appoint Sarah as ETSL, (h) the operation of TimPaq, (i) directions on the sale of the estate property, and (j) the division of Timothy’s personal property.

105The language of the Minutes is neither vague, contradictory, nor unclear.

106Steven’s evidence about what Justice Poupore may have said to him about being able to have the will examined forensically is not admissible evidence and runs afoul of the rule against parole evidence.

107There is no basis in law to set aside or “nullify” the agreement, as requested by Steven.

B. Removal of the EDTL

108The jurisprudence provided to me involved trustees named or chosen by a testator, and not court-appointed trustees. Having said that, I suggest that the principles applicable to the removal of trustee chosen by a testator would, to a large extent, be applicable to the situation at bar. The appointment was by the agreement of all the parties and it was approved by the court. A court order should not be lightly interfered with.

109An additional factor, I suggest, is that one of the persons who agreed with the appointment of the ETDL was, in fact, the person chosen by Timothy to act as his executrix and trustee.

110For reasons that follow, I conclude that Peter Best should not be removed as ETSL of Timothy’s estate.

111The complaints made by Steven and Sara, and the evidence they have provided does not establish that there is no option, in the circumstances, but to remove Peter Best.

112Likewise, I am not satisfied that the welfare of the beneficiaries is in any kind of jeopardy by not acceding to the request for removal. Despite almost intolerable conditions, Peter Best has, at all times, acted in the best interest of the estate and of the three beneficiaries.

113I further conclude that none of the acts or omissions complained of justifies the removal of Peter Best as ETDL, and, further, I do not find, on the evidence, that anything Peter Best did, or did not do, endangered the trust property, nor did Peter Best display either a lack of honesty, or an incapacity to carry out his duties in a fair and proper manner.

114As indicated by Peter Best, there remains little to do in order to wind up the estate. There is no evidence to suggest that his removal is required to protect either the estate assets or the beneficiaries.

115While it has been suggested that, given the extremely poor relationship that exists between Peter Best and Steven and Sarah, it is likely to be difficult for him to act with impartiality, I am unable to conclude that such is the case, given the manner in which Peter Best has been able, notwithstanding the vitriol and unjustified criticism from two out of three of beneficiaries, to discharge his duties as estate trustee competently, fairly, and even-handedly. The evidence simply does not support the positions taken by Steven and Sarah.

116The friction between Peter Best and Steven and Sara is considerable and has escalated to distrust, however, as was stated in paragraph 117 of the Radford decision, “while it is unfortunately true that there is friction between the estate trustee, on the one hand, and the applicants, on the other hand, the friction has affected only the applicants’ PERCEPTION of the trustee’s impartiality – not [his] impartiality in fact.

117I recognize that, on the facts of this case, it appears that there is a considerable amount of personal hostility between Peter Best and Steven and Sarah. Again, that is insufficient to justify the removal of the estate trustee. As was stated at paragraph 20 of Crawford v. Jardine 1997 Carswell Ont. 4962, 20 E.T.R. (2d) 182:

It must be demonstrated that it is the animosity which has motivated the trustee, and that as a result there is a likelihood that the trust cannot be carried out…

118The evidence establishes that the personal hostility is primarily on the part of Steven, and to some extent Sarah, rather than on the part of the estate trustee.

119I have concluded that the manner in which Peter Best conducted the sale of the three Sudbury properties (Frood Road, Prete St. and Lady Ashley) was both prudent and reasonable. The issue of the repair of non-repair of the Prete St. and Lady Ashley properties has been thoroughly and adequately explained in Peter Best’s materials. I have referred to those explanations earlier in these Reasons, and I will not repeat them here. The explanations have satisfied any concerns that might have been raised about the issue of repairs not being carried out by Peter Best. With regard to both properties, Peter Best obtained professional advice, as he should have done, and he acted in accordance with it. That was reasonable and appropriate. There is no evidence that the sale of those properties did not provide the maximum yield at the time.

120Peter Best has also adequately explained why he deviated from the statement to Justice Poupore that he would effect the repairs to Lady Ashley. I will not repeat the explanation, which I have referred to earlier in these Reasons. There was no breach of undertaking by Peter Best in deciding not to pursue his earlier stated intention to repair the stairs. There was nothing improper in his not proceeding with his earlier plan, in the circumstances.

121I further conclude that the complaints about the “double-ending”, the rate of the real estate commission, and the hiring of Paul Parent, who was known to both Timothy and Lynette, are just that: complaints. There is no evidentiary foundation for those complaints and they are without merit.

122I make the same comment about the complaint relating to Peter Best’s failure to obtain three independent market valuations for each of the properties. There is no evidence to establish that it is customary to obtain three independent market valuations for the sale of Sudbury property. The properties were sold on the open market, and under the MLS system. Proper appraisals had been obtained for each of the properties in advance of listing, the list price reflected the existing condition of the properties, and the transactions were handled by experienced and respected realtors.

123Peter Best was under no obligation to confer or even advise the beneficiaries about any offers or counter-offers relating to the properties. His obligation was to sell the properties for maximum yield and he did so.

124With regard to the contents of the Lady Ashley property, Peter Best’s decision to accept that the majority of the furnishings consisted of used furniture and appliances which could reasonably be the subject of a claim by Lynette, given the long-standing spousal relationship that existed between Lynette and the deceased, was reasonable. His conclusion that it would be unwise and disproportionate to expend time and money on a dispute about items of modest financial value is unassailable. Given that position, there was no obligation to obtain additional or different documentation relating to the acquisition or insurance on those items.

125After the Minutes of Settlement were entered into, Peter Best had no obligation to chase down the personal property of Timothy, including the contents of Lady Ashley. Paragraph 10 of the minutes provided for the physical division of Timothy’s personal property, other than the guns, crow-bow, and pool table. It did not impose any obligation on Peter Best in regard to the personal property. Whatever obligations Peter Best might have had regarding Timothy’s personal property pursuant to the January 17, 2014 Order, were extinguished by the terms of the Minutes of Settlement.

126With regard to the insurance documents, Peter Best did, in fact, discharge his obligation set out in paragraph 19 of the Minutes of Settlement: he obtained and forwarded documents from Brokerlink. He was obligated to do no more.

127The evidence also fails to support the allegation that Peter Best in any way favoured Lynette over Steven and Sarah. In fact, the evidence establishes the opposite. When he became aware that Lady Ashley was owned by TimPaq, he advised Lynette that she would have to vacate the property. When he perceived that Lynette was in conflict in connection with her managerial position at TimPaq, he terminated her employment. When he perceived that Lynette was not discharging her obligations (list of property, cooperation with the sale of Lady Ashley, he took steps: he communicated with her, he communicated with her counsel, and he sought the court’s assistance by way of motion. The fact that he did not inspect Lady Ashley until after Lynette vacated the residence is of no consequence given my earlier conclusion regarding the contents of the residence.

128With regard to specified chattels, i.e. the firearms, the cross-bow, and the pool table, Peter Best has made these available to Steven and Sarah. The fact that they still do not have those chattels in their possession is attributable to their failure to respond to offers of delivery or pick up.

129The complaints about delay in administering the estate are also unfounded and unjustified. Other than some delay in Paul Parent being able to access the Lady Ashley property caused by Lynette, any other delay was neither unreasonable nor unjustified, nor is there any evidence that it might have somehow resulted in any financial loss to the estate.

130There is also no evidence that the delay in listing caused by Lynette resulted in any loss to the estate.

131Sarah’s complaint about Peter Best not having responded to inquiries made just before the holidays by the date of the motion is unreasonable.

132On all of the evidence, I conclude that, at all times, Peter Best exercised his duties as estate trustee in a reasonable, honest, and appropriate manner. While his language and conduct in the course of the cross-examination was intemperate, rude and inappropriate, he has, as indicated earlier, apologized. I am not satisfied that this outburst in the course of what can only be described as a brutal and aggressive, (and to a significant extent inappropriate and irrelevant) cross-examination has removed Peter Best’s ability to conclude the administration of the estate competently and fairly.

133There are a few of Steven’s complaints that bear addressing before I move to the next issue.

134Any issues relating to any accounts submitted by Peter Best in connection with the discharge of his duties as estate trustee can be addressed when he passes his accounts, at the conclusion of the administration of the estate.

135Steven’s complaint that Lynette has hidden assets of the estate is not supported by the evidence. The complaint that Lynette was overcompensated for the funeral costs is something that can be taken into account when the estate is distributed to the beneficiaries.

136The issues set out in C and D above are moot, given my conclusion regarding the motion to remove Peter Best as ETDL. I will turn then to the last issue.

E. Can Lynette be compelled to comply with the Order of January 17, 2014.

137Steven’s earlier motions, February 21, 2014, and April 4, 2014, had requested enforcement of the terms of the January 17, 2014, order that, among other things, Lynette discharge the obligations imposed upon her at paragraph 10 of the order. The request for this relief was once again made in the August 5, 2014. In the interim, however, the Minutes of Settlement were entered into.

138I have already concluded that those Minutes of Settlement effectively dealt with all outstanding claims for relief in Steven’s earlier motions, as well as the outstanding attack on Timothy’s will, and Lynette’s claims.

139That being the case, the relief Steven (and Sarah) seek against Lynette is not available.

140There will not be, nor can there be, any Order made against Lynette relating to any obligations she had pursuant to the January 17, 2014, order.

141There is one final matter that must be addressed and that is the mechanics of the exercise of the beneficiaries’ right of first refusal with regard to the Manitoulin properties.

142The Minutes of Settlement provide that the beneficiaries have the right of first refusal, exercisable in writing within 60 days of notification that the properties are in the name of the ETDL and real estate letter of opinion of value have been obtained.

143The Minutes go no further than that. They do not state that the values associated with the respective properties would be charged against each beneficiary’s share of the estate.

144According to Steven and Sarah, the combined value of the Manitoulin properties is significantly less than the amount of money that TimPaq has in its bank account: approximately $160,000 versus almost $900,000.

145In these circumstances, it is suggested that it is not reasonable to require each of the beneficiaries to pay the appraised value for his or her parcel(s) to the estate, as opposed to charging the value against that person’s share of the residue.

146I am not satisfied that I can deal with this issue on the evidence before me. I have no evidence regarding any possible tax issues that the estate has to address, and it is suggested that there is the matter of a mortgage continuing to be registered against the title to the property that Sarah wishes to acquire.

147Additionally, there is no request for this relief in Steven’s motion, which is the only matter that was before me.

148In the circumstances, I decline to make any order in connection with the Manitoulin properties.

Order

149The motion dated August 5, 2014 is dismissed.

150Unless the parties agree on costs, Peter Best and Lynette Burton may make written submissions as to costs within 30 days of the release of these reasons for decision. Steven Bryant and Sarah Bryant have 15 days after receipt of the Best and Burton submissions to respond in writing. No submission shall exceed five (5) pages, double-spaced. If no submissions are received within the time frame set out herein, the parties will be deemed to have settled the issue of costs as between themselves.

The Honourable Madam Justice Louise L. Gauthier

Released: January 9, 2015

Bryant Estate v. Bryant, 2015 ONSC 161

COURT FILE NO.: 2013-6967

DATE: 2015-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

In the Matter of the Estate of Timothy Robert Bryant, deceased

BETWEEN:

Steven Timothy Bryant

Moving Party

– and –

Peter Best, Estate Trustee During Litigation

– and –

Lynette Burton

– and –

Sarah Bryant

Responding Parties

DECISION ON MOTion

Gauthier J.

Released: January 9, 2015