Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eileen Tierney and Beverly (Tierney) Brown, Estate Trustees, Applicants
AND
Keith Tierney, Clifford Tierney, Michelle Bourque, Albert Bourque, Lisa Bourque, Claire Bourque, Tracy Buffalo, and Roger Bourque
Respondents
BEFORE: Mr. Justice C.T. Hackland
COUNSEL: Marcia A. Green, for the Applicant
D. Larry Segal, for the Respondents
HEARD: June 16, 2015 (Ottawa)
Endorsement
[1]
Background
Certain beneficiaries of the estate of the late Lloyd Tierney seek the removal of the estate solicitor, Mr. Peart and his firm Nelligan O’Brien Payne, on the allegation that he is in a conflict situation and will inevitably be a key witness in this contested passing of accounts, because he was the solicitor who handled most of the transactions in issue. The estate trustees (the late Mr. Tierney’s daughters Eileen and Beverly) argue that the motion is premature and the applicants should first examine them in their capacity as estate trustees before making any determination of the alleged conflict.
2I note the will has been admitted to probate and Eileen and Beverly were granted a certificate of appointment as estate trustees, all without objection. At the time of the late Mr. Tierney’s death, Eileen had been acting for several years as his Power of Attorney for property. Mr. Peart was Eileen’s solicitor in regard to the actions she took as Power of Attorney. In that connection he, of course, owed a duty to Mr. Tierney as well as to Eileen. Mr. Tierney’s mental capacity in his final years is in dispute in this proceeding, although, as noted, his will has been admitted to probate.
3Mr. Peart has or had the following involvements with the Tierney family:
Solicitor for Eileen Tierney as Power of Attorney for property for Lloyd Tierney, prior to his death;
Handled the sale of one lot in the disputed mobile home park on instructions from Eileen, but acting for Mr. Tierney beneficially in the transaction;
Solicitor for Lloyd Tierney’s wife Helen who died nine months before him and handled her estate, certain aspects of which appear to be involved in the present dispute;
Shortly after Lloyd Tierney’s death, as estate solicitor, handled the sale of the mobile home park (the principal transaction in dispute), on instructions from Eileen and Beverly Tierney as estate trustees;
May have advised the testator concerning his will by supplying a draft document to him;
Administered the compensation payable to Eileen for her services as Power of Attorney for property (which payments are now in dispute).
4When Eileen was the late Mr. Tierney’s the Power of Attorney for property, her fiduciary duties were owed to him. Only the late Mr. Tierney’s estate would appear to have had standing to challenge the attorney’s actions. Upon her father’s death Eileen became one of the estate trustees where her fiduciary duties extended to the various beneficiaries of the estate. Mr. Peart’s obligations also transitioned as he acted for Eileen in these several roles.
[5]
Analysis and Decision
It is apparent to the Court that Mr. Peart’s extensive involvement in the late Mr. Tierney’s affairs and subsequently with his estate (by way of his representation of Eileen Tierney) has evolved to a potential conflict situation in the context of this hotly disputed passing of accounts. He was the solicitor handling many or most of the transactions in dispute. In a somewhat similar case is Southam v. Southam, [5002] O.J. No 6147 in which the estate solicitor was required by the Court to withdraw.
6In the circumstances, of this contested passing of accounts, I grant the requested order removing the Nelligan O’Brien Payne firm as solicitors for the estate of the late Lloyd Tierney.
7I decline to make any further orders for directions until the estate trustees have had a reasonable opportunity to retain new counsel. They will wish to seek independent advice from the new counsel about, among other issues, whether and to what extent their solicitor client privilege can be waived which would appear to cover their communications with Mr. Peart.
[8]
Costs
If the moving parties are seeking costs, they should provide a written submission within 30 days of the release of this endorsement and the applicant may respond within 30 days of the receipt of the moving parties’ submission.
Mr. Justice Charles T. Hackland
Date: at Ottawa, June 26, 2015
CITATION: Tierney (Estate) v. Brown, 2015 ONSC 4137
COURT FILE NO.: CV-14-61002
DATE: 2015/06/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Eileen Tierney and Beverly (Tierney) Brown, Estate Trustees,
Applicants
AND
Keith Tierney, Clifford Tierney, Michelle Bourque, Albert Bourque, Lisa Bourque, Claire Bourque, Tracy Buffalo, and Roger Bourque
Respondents
BEFORE: Hackland J.
COUNSEL: Marcia A. Green, for the Applicant
D. Larry Segal, for the Respondents
ENDORSEMENT
Hackland J.
Released: June 26, 2015