CITATION: Continental Casualty Company v. Symons 2015 ONSC 2021
COURT FILE NO.: CV-14-5416-00
DATE: 2015-03-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CONTINENTAL CASUALTY COMPANY
AND:
ROBERT THOMAS SYMONS
BEFORE: Justice William M. LeMay
COUNSEL: Margaret E. Rintoul, for the Respondents (Moving Party on Original Motion)
Sean N. Zeitz, for the Moving Party (Responding Party on Original Motion)
ENDORSEMENT
[1] This is a motion brought by Robert Thomas Symons (hereinafter “Robert”) for an Order setting aside the ex parte Order of Lemon J., which was granted on December 4, 2013. The Order was originally sought by the Responding party on this motion, Continental Casualty Company (“Continental”) for various directions relating to the Estate of the late Gerald Gordon Symons (hereinafter “Gerald”).
[2] This is one step in a series of cases with a very complicated procedure, and a very long history, with litigation in the United States over a number of years. Therefore, it is convenient for me to set out a brief history prior to dealing with the issues raised on the motion.
Background and History
a) The American Litigation
[3] Gordon died in Caledon on November 22, 2012. He left a will, and named Executors. His son, Robert, is the Responding Party on this motion. On the materials before me, Robert is the sole remaining executor who has not renounced his authority to act.
[4] Based on the materials filed before me, it appears that Gordon was a shareholder and a key player in a company called Symons International Group Ltd. Robert was also involved in this Company at least as far as addressing the American litigation. The extent of their involvement is not clear on the record that I have been provided with it, and I make no findings in that regard.
[5] In any event, Symons International was involved in litigation with Continental in the United States over significant commercial issues. The litigation proceeded to a final judgment in the United States Federal District Court for the Southern District of Indiana.
[6] That final judgment resulted in an award for approximately $44,000,000.00 inclusive of interest against Symons International as well as Robert, as successor in interest to Gordon.
[7] The decision of the United States District Court is under appeal at this time to the United States Court of Appeals for the Seventh Circuit. I was not given any information about the status of that appeal other than it has been filed with the Court. I was provided with some details of the arguments being advanced on appeals. These are not relevant to the disposition of this motion.
b) The Ex Parte Order and the Information Provided
[8] Continental has now moved to have the United States judgment enforced in Canada. To do this, they have taken two steps. First, they have sought to address issues relating to the administration of Gordon’s estate. Second, they have filed a Statement of Claim in order to domesticate the United States judgment.
[9] In respect of the estates administration issue, Continental brought an ex parte motion on or about November 21, 2014 to the Superior Court in Brampton seeking an Order For Assistance that would direct Robert to either file an application for a Certificate of Appointment as the Estate Trustee for Gordon’s estate. Under the Order that Continental sought, Robert would be deemed to have renounced his right to be appointed if he did not seek a Certificate of Appointment.
[10] The Order that Continental sought also required Robert to provide the wills and codicils in his possession to the Court, and gave Robert the flexibility to challenge this Order. Finally, in the event that Robert was deemed to have renounced his rights to be appointed as an Estate Trustee, the Order would have resulted in the appointment of a professional Estates Administrator as Trustee.
[11] It is worth noting that Gordon died in November of 2012. As a result, there may have been issues of limitations periods that were of concern to Continental with respect to the Estate Administration.
[12] The Order proposed by Continental and signed by Lemon J. served the dual purpose of advancing Continental’s desire to have the Estate probated in a timely way, while protecting Robert’s rights to act as Estate Trustee.
[13] In its ex parte motion, Continental provided additional information. I will have more to say below about the information that Continental provided, as well as Robert’s arguments on the deficiency of the information on the original motion.
[14] Continental’s action in Toronto, commenced by way of a Statement of Claim, was brought in order to domesticate the United States judgment so that it can be enforced against the assets of Gordon’s estate in Ontario. It has not yet proceeded to litigation, and I was advised that it will be challenged by the Symons parties.
c) Information Provided On This Motion
[15] On this motion, Continental provided additional information. The key allegation that they made was that the assets of the estate were being dissipated by third parties. I have not considered that evidence in making my determination on this motion. As noted below, the question I have to decide is whether the ex parte Order was properly granted based on the record as it was originally filed.