ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-3393/13
DATE: 20150609
BETWEEN:
The Estate of Marjorie Dredge
Robert Scriven, for the Applicant
Applicant
- and -
Donna MacKeand and
Barbara Seitz
Allen Wilford, for the Respondents
Respondents
HEARD: June 8, 2015
REASONS FOR DECISION ON MOTION
Conlan J.
I. Introduction
[1] On December 16, 2012, Marjorie Dredge died. Her husband had passed away a little more than one month prior.
[2] The Estate Trustees for Marjorie Dredge (“Marjorie”) are her children, Sandra Droefke (“Sandra”) and Murry Dredge (“Murry”). Sandra and Murry are also beneficiaries of Marjorie’s Estate. The other beneficiaries are their siblings, Keith Dredge, Barbara Seitz (“Barbara”) and Donna MacKeand (“Donna”).
[3] Sandra and Murry have brought an Application to pass the accounts of the Estate. Donna has filed an objection.
[4] On June 8, 2015, in Walkerton, I heard a Motion by Barbara to be added as a party (an objector) to the proceeding. Unopposed, that Motion was granted.
[5] Also on June 8, 2015, I heard a Motion by Donna (supported by Barbara) for disclosure. Specifically, Donna wants to obtain her parents’ bank records (from Meridian) for 2006 and 2007. The actual relief sought, as evidenced from Donna’s Factum and the oral submissions by her counsel at Court, is an Order that the Estate Trustees sign releases of information in order for Donna to be able to obtain the further details in question. That Motion is opposed by Sandra and Murry.
II. The Positions of the Parties
[6] Each side has filed affidavit evidence, a Record, a Book of Authorities and a Factum.
[7] Succinctly put, Donna (supported by Barbara) submits that the disclosure sought is necessary because there is a sizeable amount of money unaccounted for. In particular, Marjorie and her husband sold their house in 2006 for $300,000.00, and twenty months later there was only $102,000.00 left. Where did the $200,000.00 or so go? (paragraph 2 of Donna’s Factum).
[8] Donna argues that what is being asked of the Estate Trustees is simple – sign the releases of information. There is no downside. There is no risk. There is no expense to the Trustees (that will be borne by Donna).
[9] Further, Donna submits that the Estate Trustees have a legal obligation to sign the releases of information. The following is the key argument advanced by Donna (and Barbara), found at paragraph 36 of Donna’s Factum:
- The defendants rely on Supreme Court of Canada’s decision in Fales v. Canada Permanent Trust Co., 1976 14 (SCC), [1977] 2 SCR 302 at page 304 (headnotes), reiterated at pp 316-318, and in turn reiterated in Sekulich v. Sekulich, 2012 ONSC 1594, which states:
Canada Permanent breached the duty which it owed to the beneficiaries of the estate. It failed to meet the standard of care and diligence required of a trustee in administering a trust, i.e., the standard of a man of ordinary prudence in managing his own affairs. It was not necessary to decide whether a higher standard of diligence should be applied to the paid trustee, for Canada Permanent failed by any test. The vigilance, prudence and sagacity which the law expects of trustees was never apparent.
[10] Finally, Donna argues that the Estate Trustees are estopped from submitting that they have no obligation to disclose anything as far back as 2006/2007 because they have already provided bank documents for the year 2008.
[11] In a nutshell, the Estate Trustees submit that this is a fishing expedition (my expression). They argue that it is telling that Donna’s disclosure Motion was not brought until a few months after the Application to pass accounts was served.
[12] Further, according to Sandra and Murry, they have no legal obligation to provide the disclosure being sought.
III. Analysis
[13] On a careful review of the evidence before me, despite the able submissions by Mr. Wilford on behalf of Donna (and Barbara), for the following reasons, I have determined that Donna’s disclosure Motion must be dismissed.
[14] First, I have not been provided with any legal authority, statutory or jurisprudential, that supports Donna’s position. Paragraph 36 of Donna’s Factum, quoted above, is not of assistance to the moving party. That submission merely confirms that Sandra and Murry, in administering a trust (Marjorie’s Estate), are held to a certain standard of care and diligence. That is not disputed. What is disputed is that the said standard of care stretches as far as an obligation to investigate into and disclose financial documents that pre-date, by several years, the time that Sandra and Murry became Estate Trustees. The case law relied upon by Donna at paragraph 36 of her Factum does not support the existence of such a broad interpretation to the duties expected of a trustee.
[15] Second, there is an inadequate evidentiary foundation to support the proposition that monies are missing or unaccounted for, in a nefarious sense. It is true that the sale of the deceased’s house grossed some $300,000.00. And it is true that there was just over $100,000.00 left less than two years later. But that time period pre-dated, by years, the deaths of Marjorie and her husband. That time period pre-dated, by years, the involvement of Sandra and Murry in the financial affairs of their parents. That time period pre-dated, by years, the existence of any fiduciary duties on the part of Sandra and Murry vis-à-vis the finances of their parents.
[16] What happened to the rest of the sale proceeds of the house? Donna poses that question. That is a question that has nothing to do with the administration of the Estate. That question could have been posed to Marjorie or her husband, but it is not a question that Sandra and/or Murry are required to answer.
[17] The situation would be different if there was evidence before me that Sandra and/or Murry was/were somehow involved in the alleged disappearance of some of the proceeds of sale of their parents’ home. On the record before me, I am unable to draw that conclusion. Simply put, there is insufficient evidence in the record that anything improper, nefarious, illegal, improvident or even suspicious happened with the proceeds of sale of the home. It is not enough to point to two bank balances that are twenty months apart and surmise that something went wrong. If that was sufficient, then presumably we could go back in time indefinitely to examine seemingly strange changes in bank balances over the lives of the deceased.
[18] Third, I do not accept the argument by Donna that what she is seeking will cause no prejudice, risk, downside or cost to the Estate Trustees. There is, of course, the prejudice in delaying the settlement of the Estate and the passing of the accounts. Sandra and Murry have an obligation to move swiftly and efficiently, though fairly, to settle the Estate and distribute to the beneficiaries what they are entitled to (and the settlement of the Estate includes the passing of the accounts).
[19] Fourth, I do not accept the argument that, by providing some bank records for the year 2008, the Estate Trustees are estopped from opposing this disclosure Motion brought by Donna. It may be that the issue of the relevance of financial information pre-November 2012 has arisen collaterally or incidentally in the course of this proceeding or in the related Small Claims Court action involving these same parties, however, that is not enough to give rise to a successful argument of issue estoppel. I do not consider the fact that the Estate Trustees have supplied some financial documentation pre-November 2012 to be an agreement or concession by them that everything that transpired before the deaths of Marjorie and her husband is fair game.
[20] The focus of issue estoppel is to prevent a party from essentially re-arguing something that has already been decided, whether by agreement or by Court intervention. The doctrine is aimed at preventing unfairness to the other side. I see nothing unfair about allowing Sandra and Murry to oppose this disclosure Motion brought by Donna notwithstanding that the Estate Trustees have provided some banking information for the year 2008.
[21] Finally, it must be remembered that Sandra and Murry are not professional trustees. They are children of the deceased. That does not absolve them of all responsibility, however, the law in Canada has long been that non-professional Estate Trustees cannot be criticized for lack of training or experience. They must act in good faith. Their motives must be proper ones. They must demonstrate a minimum of good judgment. They must act with the same degree of diligence as would be expected of a person of ordinary prudence in the management of his/her own affairs. They must act reasonably and honestly. Widdifield on Executors and Trustees, published by Carswell, chapter 8, section 8.1.2, page 8-3.
[22] My review of the record indicates that Sandra and Murry have met those expectations. I disagree with Donna and Barbara that the granting of the disclosure Motion is necessary.
IV. Conclusion
[23] For all of the foregoing reasons, Donna’s disclosure Motion is dismissed. On a balance of probabilities, I am not persuaded that the relief sought should be granted.
[24] If necessary, counsel may contact the Trial Coordinator in Owen Sound, within one week of the release of these Reasons, to arrange a time to speak with me about costs of the disclosure Motion (in person or by teleconference); and/or to schedule a return date for the Application to pass accounts.
Conlan J.
Released: June 9, 2015
COURT FILE NO.: CV 3393/13
DATE: 20150609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Estate of Marjorie Dredge
Applicant
- and -
Donna MacKeand and
Barbara Seitz
Respondents
REASONS FOR DECISION ON MOTION
Conlan J.
Released: June 9, 2015