Court File and Parties

COURT FILE NO.: 15-66754 DATE: 2016/05/31 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE ESTATE OF MIECZSLAW SIEJA, also known as MICHAEL SEIJA, also known as MICHAL SIEJA, deceased

RE: GRZEGORZ GRODZKI As Trustee of the ESTATE OF MIECZYSLAW SIEJA, a.k.a. MICHAEL SEIJA, a.k.a. MICHAL SIEJA Applicant

AND

BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, TYLER SIEJA, ROBYN SIEJA, AARON SIEJA, and DARCY MACNEALE a.k.a. DARCY SIEJA Respondents

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Katrina M. Anders, for the applicant No one appearing for the respondents

HEARD: March 10, 2016

Endorsement

CORTHORN J.

Introduction

[1] Grzegorz Grodzki (“Grodzki”) brings this application in his capacity as the Estate Trustee of the Estate of the Mieczyslaw Sieja (“the Estate”). In that capacity Grodzki is referred to as “the Applicant” throughout this endorsement. Grodzki does not bring this application personally. The relief sought is nonetheless personal to Grodzki.

[2] The primary relief sought is a declaration that Grodzki is, by right of survivorship, the sole owner of bank accounts said to be valued at $825,000 (“the Bank Accounts”). The Bank Accounts were solely in the name of Mieczyslaw Sieja (“the Deceased”) as of June 2014 when he died. In the alternative, the Applicant seeks directions from the Court as to how the funds in the Bank Accounts are to be addressed in the context of the administration of the Estate.

[3] Based on the limited evidence before me, it appears that the Applicant has not given consideration to the conflict between his role as an estate trustee, his potential interest personally in the Bank Accounts, and the interests of the beneficiaries of the Estate. The individuals named as respondents on this application are residuary beneficiaries of the Estate.

[4] In addition, it appears that counsel for the Applicant did not, when preparing the materials and when appearing on the return of the application, fully consider: a) the afore-mentioned conflict; and b) whether it is appropriate for her to act for any party on this application.

[5] The outcome of the application turns in part on the meaning to be given to a Declaration of Intention executed by the Deceased in January 2013. In that document, he expressed his intentions as to what was to happen to the Bank Accounts on his death. The Declaration of Intention was executed three days after the Deceased executed his will (“the Will”). Both documents were executed only a number of months after the Deceased, at age 88, suffered a stroke.

[6] The evidence on the motion is limited to that of Grodzki (in a single affidavit) and of Ms. Liboiron (in two affidavits). Ms. Liboiron is an assistant to counsel for the Applicant. The evidence of Grodzki and Ms. Liboiron is uncontradicted. Their evidence, in particular the evidence of Grodzki, is less than satisfactory both in terms of its substance and quality. It appears that consideration was not given to the requirements pursuant to sub-rule 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with respect to evidence on an application. In summary, evidence on information and belief is permitted on an application only if the evidence is with respect to non-contentious matters.

[7] The record also consists of ‘consents’ signed by the individual respondents. The respondent banks did not file any responding materials.

[8] I am not aware as to whether any of the respondents delivered a notice of appearance. In any event, none of the respondents was represented on the return of the motion.

[9] For the reasons that follow, I am unable at this time to determine the substantive issues on the application. The application is adjourned to permit the Applicant to take the steps required pursuant to the order set out at the end of this endorsement. I remain seized of the matter. If the Applicant intends to pursue the application, it is to be brought back before me.

[10] In this endorsement I make reference to the conduct of and lack of evidence from each of the Applicant and his counsel of record. The references are not intended to imply that either the Applicant or his counsel are deliberately attempting to mislead the Court or the respondents in any way. In making the references I intend only to identify the areas of concern that contribute to my inability to determine the substantive issues at this time.

Background

a) The Deceased and Grodzki

[11] The mother of Grodzki was the ‘common law’ spouse of the Deceased for fifteen years. Commencing in the year 2000, Grodzki and the Deceased began to develop their relationship. In his affidavit Grodzki describes the Deceased as a father figure to him. Grodzki believes that the Deceased considered him to be like a son.

[12] Over time, Grodzki and the Deceased became close. It is said by Grodzki that on the basis of their relationship the Deceased named Grodzki as his attorney for property. A copy of the Power of Attorney for property is not included in the record before me.

[13] The Deceased was born in 1924. He suffered a stroke in October 2012 at age 88. At some point in time after suffering the stroke the Deceased became an inpatient of St. Vincent Hospital in Ottawa (“the Hospital”). There is no evidence as to when the Deceased became an inpatient of the Hospital. He remained an inpatient until his death in June 2014.

[14] Once admitted as an inpatient, the Deceased rarely left the Hospital. During his admission to the Hospital, the Deceased relied on Grodzki in his capacity as attorney for property to carry out tasks such as banking on behalf of the Deceased.

b) The Bank Accounts

[15] It is Grodzki’s evidence that in the fall of 2012, the Deceased attended at the Bank of Nova Scotia and expressed, to an employee of the bank, his intentions to transfer the ownership of three Scotiabank accounts from sole ownership of the Deceased to joint ownership of the Deceased with Grodzki. Grodzki’s understanding is that the Deceased was not able in 2012 to effect the change in ownership of the Scotiabank accounts from sole to joint because both the Deceased and Grodzki had to be present for that change to be made.

[16] The evidence with respect to the Deceased’s attendance at the Bank of Nova Scotia in the fall of 2012 is third hand; Grodzki was informed of same by his counsel who, in turn, was informed of same by an employee of the bank. There are no records from the bank, no copies of any notes taken by the bank employee during her meeting with the Deceased, and no evidence from the bank employee as to what transpired during the meeting.

[17] There is no evidence from counsel for the Applicant, who is said to have spoken with the bank employee about this attendance at the bank by the Deceased, as to counsel’s conversation with the bank employee. In any event, on a matter involving sums of several hundred thousand dollars and to satisfy the ‘best evidence’ rule, it would be preferable to have evidence from the bank employee with whom the Deceased met in 2012.

c) January 2013 - Will and Declaration of Intention

i) The Name of the Deceased

[18] In January 2013, the Deceased executed a Declaration of Intention with respect to the Bank Accounts. The Declaration of Intention was executed three days after the Deceased executed the Will; the latter is the document pursuant to which Grodzski is appointed as the Estate Trustee. Both documents were prepared by counsel representing the Applicant on this application (“Ms. Anders”).

[19] I note that in the Will, executed on January 22, 2013, the Deceased is named as “Mieczyslaw Sieja (also known as Michael Seija, also known as Michal Sieja)”. Presumably the title of proceeding in this action is based on the name(s) of the Deceased as they appear in the Will. However, in the title of proceeding the Deceased’s first name is spelled as follows, “Mieczslaw” (leaving out the “y”). The Deceased’s signature on the Will was witnessed by Ms. Anders and by a legal assistant at Ms. Anders’ office.

[20] In the Declaration of Intention, the Deceased is named as “Miczyslaw Sieja” – which is not one of the three names by which he is identified in the Will.

[21] The differences in the names used for the Deceased may not be of any relevance to the substantive issues. At a minimum those differences, including as between the documents and the title of proceeding, should be addressed and clarification provided in the evidence filed in support of the application.

ii) The Capacity of the Deceased

[22] There is no evidence from Ms. Anders as to her investigation of the capacity of the Deceased in January 2013 to provide instructions with respect to either the Will or the Declaration of Intention. There is no medical evidence as to the condition of the Deceased subsequent to the fall of 2012 when he suffered the stroke and, in particular, as of January 2013 when he executed the Declaration of Intention and the Will.

[23] It is Grodzki’s evidence that he considered the Deceased to be mentally competent to the date of his death. Grodzki does not elaborate on what he considers “mentally competent” to mean including whether he uses the phrase colloquially or otherwise.

[24] In any event, Grodzki’s evidence as to the capacity of the Deceased would serve, at most, as anecdotal evidence. It is medical evidence and the evidence of Ms. Anders, the latter in her role as the lawyer for the Deceased taking instructions from a client, which would serve as the best evidence on the issue of the capacity of the Deceased to provide instructions with respect to the documents executed in January 2013.

iii) The Instructions from the Deceased

[25] There is no evidence from Ms. Anders as to the specific instructions which she was given by the Deceased with respect to the terms of the Will and/or the terms of the Declaration of Intention. It is Grodzki’s evidence, based on information provided to him by Ms. Anders, that Ms. Anders was given the requisite instructions by the Deceased with respect to both documents. Once again, Grodzki’s evidence on the subject is not the best evidence.

iv) The Documents

[26] The Declaration of Intention lists the Bank Accounts (in paragraph 1 of the document). The Bank Accounts are identified by number only as per the accounts listed in paragraph 31 below. There is no reference in the Declaration of Intention to the monetary value of each account (as there is in paragraph 31 below). The Bank Accounts are referred to as “assets” and are addressed as follows:

2. IT IS MY DECLARED INTENTION that the transfer of the ownership of the assets as described in paragraph 1 above is to be made joint with the right of survivorship and upon my death shall be a gift to my friend, GRZEGORZ GRODZKI for his sole and absolute use.

3. IF AT THE TIME OF MY DEATH these assets are not held jointly by friend, GRZEGORZ GRODSKI and myself , than [sic] the assets as described in paragraph 1 above should be considered jointly held with him, including the right of survivorship.

4. IN AN EFFORT to thank my friend, GREGORZ GRODSKI , it is also my intention to gift him a portion of these accounts before my death. This should not be contested. This recognizes all the generosity he has shown towards me and the strength of our friendship.

5. NOTWITHSTANDING the intention to transfer ownership in the event of my death, I HEREBY DECLARE that no assets, or the income therefrom, under this Declaration shall be assigned or anticipated, or fall into any community of property, partnership or other form of sharing or division of property which may exist between any beneficiary and his or her spouse, and every gift together with the income therefrom shall remain the separate property of a beneficiary hereunder, free from all matrimonial rights or controls by his or her spouse.

[27] In his affidavit, Grodzki says, “I did not arrange for the signing of [the Declaration of Intention], nor did I encourage or influence Michael Sieja in the execution of same.”

[28] Grodzki’s evidence is that during the calendar year 2013, the Deceased suggested that the two men go to the respondent banks together so that the Deceased could arrange for the change from sole ownership to joint ownership, with Grodzki, of the Bank Accounts. Such an outing never happened. The Deceased died, after executing the Declaration of Intention and before he was able to attend at the banks with Grodzki to effect the change in ownership of the Bank Accounts.

[29] The terms of the Will, executed three days prior to the date on which the Declaration of Intention was executed in January, essentially provide that the Estate is to be divided as between three of the Deceased’s grandchildren, his former daughter-in-law, and Grodzki. The Bank Accounts are not mentioned in any way whatsoever in the Will. The division of the residue of the Estate is provided for in the Will as follows:

Tyler Sieja (grandson) 22 per cent Robyn Sieja (granddaughter) 22 per cent Aaron Sieja (grandson) 22 per cent Darcy (no last name and former daughter-in-law) 12 per cent Grzegorz Grodzki 22 per cent

[30] At paragraph 8, the Will specifically addresses property held by the Deceased jointly with another as of the date of death:

SUBJECT TO any evidence of the expression of a contrary intention exhibited between the date of this Will and the date of my death, it shall be assumed that it is my intention that my ownership of any property to which I hold legal title jointly with a right of survivorship with some other person is upon my death to become the absolute property of the survivor to the legal title.

d) The Bank Accounts

[31] The Bank Accounts are as follows:

Scotiabank Account No. 00562849925 ( $ 12,750) Scotiabank Account No. 203960099384 ( $ 218) Scotiabank Investment Account No. 438391 ( $ 781,000) Canadian Imperial Bank of Commerce Account No. 00060-1870379 ( $ 32,000) Royal Bank Account No. 640800684 ( NIL )

[32] The figures in brackets are the amounts said by Grodzki to be the balance in the various Bank Accounts. I have, solely for the purpose of this endorsement, rounded off the figures provided by the Applicant.

[33] There is no evidence with respect to the following matters regarding the Bank Accounts:

• The bank documents identifying the terms pursuant to which the accounts were opened including, potentially, any beneficiaries of the accounts who may have been named in the opening documents.
• The amount of money in each of the five accounts:
  • When the Power of Attorney for Property appointing Grodzki as the attorney for property for the Deceased was executed by the latter;
  • When Grodzki began to act upon the Power of Attorney for Property and began to manage the Deceased’s financial affairs including with respect to the Bank Accounts; and
  • As of the date of death of the Deceased.
• The transfers, if any, into and out of the Bank Accounts made to and including the date of death of the Deceased.
• Why the balance in the Royal Bank Account is NIL.
• If the Royal Bank Account was closed, when it was closed and for what reason(s).

[34] Subsequent to the date of death of the Deceased, Ms. Anders contacted the Bank of Nova Scotia with respect to the transfer of ownership of the accounts to the Applicant on the basis of the right of survivorship. In response to Ms. Anders’ initial inquiry, the Bank of Nova Scotia refused to recognize the Scotiabank accounts as jointly owned. The Applicant sets out this evidence in his affidavit on the basis of information provided to him by Ms. Anders.

[35] The Applicant also gives evidence as to a meeting that he attended with Ms. Anders in the fall of 2014 at the Bank of Nova Scotia. He confirms that bank’s continuing refusal to transfer ownership of accounts to Grodzski on the basis of right of survivorship.

[36] Attached as an exhibit to the Applicant’s affidavit is a copy of an e-mail message dated December 17, 2014 from Peter Morgan, Manager of the Office of the President of the Bank of Nova Scotia, sent to Ms. Anders. Mr. Morgan confirms the bank’s position as follows:

You have asked Scotiabank to recognize a Declaration of Intention document executed by Mr. Sieja on January 25, 2013 that states his intention to transfer his two Scotiabank deposit accounts and investment account to joint ownership with your client.

We have determined from our review that the aforementioned accounts were not transferred to joint ownership prior to Mr. Sieja’s passing. As a result, we are unable to complete the change of ownership now nor [sic] release funds from his accounts without an order of the court which states to whom the funds in the accounts are entitled. If your client is unable to obtain such an order, we would then require a Certificate of Appointment of Estate Trustee with a Will to settle the Estate.

[37] There is no evidence as to what efforts, if any, were made by the Applicant on his own or with the assistance of Ms. Anders to arrange for transfer of the ownership of the Canadian Imperial Bank of Commerce (“CIBC”) account to the applicant by right of survivorship.

The Residuary Beneficiaries

[38] It appears that the residuary beneficiaries of the Estate (the individual respondents on this application) were each asked to execute a consent to the primary relief sought by the Applicant – that a declaration be made granting him sole ownership of the Bank Accounts. Included in the application record are four documents titled, “Consent to Applicant’s Application for Directions” (“the Consents”).

[39] Each of the Consents is identical and reads as follows:

The deceased died on June 16, 2014.

I, [ name of residuary beneficiary/individual respondent ], am entitled to share in the distribution of the estate.

I consent to the Application by Grzegorg Grodzki for Directions from the Court.

I consent to the assets listed in the Declaration of Intention, signed by the deceased on January 25, 2013, being considered jointly owned with Grzegorg Grodzki, with the right of survivorship.

[40] With respect to the Consents, I note the following:

• They were each executed in February or March 2015 – between nine and ten months prior to the date on which the notice of application was issued.
• They include a title of proceeding; however, the title of proceeding:
  • Does not include a Court File No.;
  • Does not include the same spelling for the name of the Applicant as appears in the title of proceeding in the notice of application. In the Consents the Applicant is referred to as “Grzegorg Grodzki” and not as “Grzegorz Grodzki” (the latter as appears in the title of proceeding of this application and in the affidavit);
  • Does not include either the Bank of Nova Scotia or the Canadian Imperial Bank of Commerce as a respondent; and
  • Does not refer to the Deceased or to the Estate in the same way as each is referred to in the title of proceeding for the notice of application.
• They each refer to the Declaration of Intention by date. However, they do not include a copy of the Declaration of Intention as an appendix or schedule to the Consent.
• They refer to the Bank Accounts only as identified in the Declaration of Intention – a document in which the amount of money in each account is not identified. The amount of money said to be in each of the Bank Accounts is set out only in the Applicant’s affidavit included in the application record.

a) Aaron Sieja

[41] Subsequent to signing his consent included in the application record, Aaron Sieja sent two e-mails to Ms. Anders. In the first e-mail Aaron stated that he strongly disagreed with the last section of the Consent. A copy of that e-mail is not included as an exhibit to any of the affidavits filed on the application.

[42] The second e-mail sent by Aaron Sieja to Ms. Anders said, “I just want to say I agree with the sale of the property to Greg and if you feel my grandfather truly wanted to gift Greg the money then I give my consent.” A copy of that e-mail, sent on March 7, 2016, is included as an exhibit to one of the affidavits sworn by Ms. Libouron.

[43] Given that the Applicant is seeking a declaration that he is the sole owner of the Bank Accounts by right of survivorship, it is not clear from Aaron Sieja’s second e-mail message that he consents to the relief sought. First, Aaron Sieja appears to rely, at least in part, on advice given or information provided to him by Ms. Anders as to what the Deceased’s intentions were. Second, Aaron Sieja appears to be consenting to a “gift” being made of the Bank Accounts and not to ownership by right of survivorship.

[44] In summary, the wording of Aaron Sieja’s second e-mail speaks to two of the issues which arise from the manner in which this application is being advanced. First, it speaks to the inappropriateness of Ms. Anders acting on behalf of the Applicant – in particular when there is at a minimum the appearance of her having provided advice to a party who is adverse in interest to the Applicant.

[45] The second e-mail from Aaron Sieja also speaks to the uncertainty as to the Deceased’s intentions and, more importantly, the substantive effect of the Declaration of Intention. In paragraph 2 of that document reference is made in the same sentence to both right of survivorship and gift. There are substantive differences for the Estate and the residuary beneficiaries between a gift of the Bank Accounts and the transfer of ownership of the Bank Accounts by right of survivorship.

b) Tyler Sieja

[46] The consent from Tyler Sieja was signed by him on February 17, 2015. However, by way of e-mail sent to Ms. Anders on March 7, 2016, Tyler purports to retract his consent to the relief requested by the applicant. In his e-mail Tyler said:

I’m writing you this email to retract my consent of the “Declarations of Intention” application dated “feb 17 2015” and before the supreme court hearing on “march 10 th 2016”. Please note that since you are working on this case that it is your job to inform and to update information to the supreme court. i do however accept what is written on the will.

[47] Tyler Sieja appears to rely on Ms. Anders to communicate his position to the Court. Once again, given the lack of clarity as to the nature and particulars of the communication by Ms. Anders with an individual respondent who is adverse in interest to the client whom she is representing is problematic.

[48] In terms of Tyler Sieja accepting “what is written on [sic] the will”, does he accept what is said in paragraph 8 of the Will – that property which the Deceased held jointly with another as of the date of death is to pass by way of survivorship? What was Tyler Sieja told by either the Applicant or Ms. Anders about the Bank Accounts? Does he believe that they are in some way held jointly and it is on that basis that he chose not to oppose the application?

c) Generally

[49] There is no evidence in the record before me as to the steps taken by the Applicant to:

a) Inform the residuary beneficiaries of the terms of the Will; b) Inform the residuary beneficiaries of the terms of the Declaration of Intention; or c) Provide the residuary beneficiaries with the particulars of the Bank Accounts over time.

[50] In summary, I am not satisfied that the Consents represent informed consent on the part of all of the individual respondents.

Service of Documents

a) Notice of Application

i) Individual Respondents

[51] The residuary beneficiaries of the Estate were each provided with a copy of the notice of application and a copy of the application record. The affidavits of service filed state that a copy of the notice of application was served on each of the individual respondents personally by leaving the document with them at their respective addresses. That service was effected in December 2015.

[52] I note that three of the individual respondents reside in Ontario. The fourth, Darcy MacNeale resided in Shawville, Quebec as of December 2015 when she was personally given a copy of the notice of application. As a result, Rule 17, “Service Outside Ontario”, of the Rules of Civil Procedure is relevant to service of documents on this application.

[53] The notice of application is an “originating process” within the meaning of the Rules of Civil Procedure. Pursuant to rule 17.04, “[a]n originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.” Rule 17.02(b) permits service of a notice of application with respect to the administration of estates involving real property in Ontario or a deceased who was residing in Ontario as of the date of his or her death.

[54] There is no evidence before me that the Applicant obtained leave of the Court to serve Ms. MacNeale with the notice of application in Quebec. The notice of application makes no reference whatsoever to rule 17.02 of the Rules of Civil Procedure.

[55] I find that: a) the Applicant has failed to comply with rule 17.04 of the Rules of Civil Procedure; and b) service of the notice of application on Darcy MacNeale is not effective.

ii) Respondent Banks

[56] The affidavits of service with respect to service of the notice of application on the respondent banks on December 17, 2015 provide the name of the individual at each bank with whom the copy of the originating process was left. The affidavits of service state that the individual with whom the copy of the originating process was left is, “a person appearing to be in the care and or management of the place of business of [ name of respondent bank ].”

[57] There is nothing in the affidavits of service to indicate the job title or position of the individual with whom a copy of the notice of application was left or the basis for the belief of the process server as to why the individual was in the “care and or management” of the particular bank. I am uncertain as to whether the affidavits of service of the process server are sufficient to support a finding that service of the notice of application has been properly effected on each of the banks (i.e. in accordance with rule 16.02(1)(c) of the Rules of Civil Procedure).

b) Application Record, Factum, and Book of Authorities

i) Individual Respondents

[58] The affidavits of service with respect to service of the application record on the individual respondents indicate that a copy of the record was sent to each of them by regular mail on December 22, 2015. As noted above, Darcy MacNeale was not properly served with the notice of application. I find that service of the application record on her by regular mail in the circumstances does not comply with the Rules of Civil Procedure.

[59] The remaining individual defendants were personally served with the notice of application on Thursday, December 17, 2015. They were then served by mail, sent on December 22, 2015 with a copy of the application record. In her affidavits of service in that regard, the assistant to Ms. Anders states that she mailed the copy of the application record to “the last address for service provided by [ name of individual respondent ].” However, she does not identify when the individual respondents each provided their respective “last address[es]” for service and under what circumstances.

[60] The Consents obtained from the individual respondents are dated eight to nine months prior to the month in which the application record was prepared and served. The address to which a copy of the application record was mailed to Tyler Sieja on December 22, 2015 is different from the address at which he was located on December 17, 2015 when he was personally served with a copy of the notice of application. The address to which a copy of the application record was mailed to Robyn Sieja is slightly different from the address at which she was located when she was served with a copy of the notice of application.

[61] It is unclear why a copy of the notice of application was served (or attempts were made at personal service) on December 17, 2015 and yet the application record was mailed some five days later. The affidavit of the Applicant was sworn on November 13, 2015. The notice of application and application record could easily have been personally served at the same time.

ii) Respondent Banks

[62] The application record is said by the assistant to Ms. Anders to have been mailed to each of the respondent banks on December 22, 2015. The assistant states that the application record was sent to a specific Toronto address, “the last address for service provided by [ name of respondent bank ].” There is no evidence as to what communication, if any, Ms. Anders or anyone on her behalf received from either respondent bank subsequent to December 17, 2015 (the date of potential service of the notice of application). The basis upon which the assistant believes that the addresses to which she mailed each of the copies of the application record on December 22, 2015 to be “the last address for service provided by [ name of respondent bank ]” is unclear.

[63] The application record was served on each of the respondent banks, without identification of an individual at either bank to whom the materials were sent. The names of the individuals with whom the copies of the notice of application were left at the respective banks are not included in the affidavits of service with respect to the application record.

[64] The Applicant’s factum and book of authorities are said to have been served on the Bank of Nova Scotia by sending same by e-mail to a particular lawyer at a Toronto-based law firm who is identified as “Evan Cappe, lawyer, on behalf of Adrian Visheau, solicitor for the respondent, Bank of Nova Scotia.” The application record does not include a copy of a notice of appearance delivered on behalf of the Bank of Nova Scotia by the firm at which Messrs. Cappe and Visheau are said to work. The basis upon which those individuals are collectively identified as “solicitor of record” for the Bank of Nova Scotia is not clear from the record.

[65] In addition, service by e-mail is carried out in four separate e-mails – presumably because of the volume of documents transmitted. However, nowhere is it identified in the related affidavit of service that the “solicitor of record” for the Bank of Nova Scotia consented to service of the documents by e-mail. It is therefore unclear whether the Applicant has complied with rule 16.05(1)(f) of the Rules of Civil Procedure with respect to service of documents by e-mail.

[66] Based on the affidavits of service to date, it is not clear that the CIBC has been properly served with the notice of application or application record. The CIBC was not served with a copy of the factum and book of authorities.

c) Summary

[67] I am not satisfied that the documents have been properly served on each of the responding parties – from the notice of application to the application record, factum, and book of authorities.

Substantive Issues

a) Evidence Given During Submissions

[68] Ms. Anders made reference in her submissions to a number of matters or subjects about which there is no evidence before the Court:

• The Estate includes several pieces of real estate. The properties were, prior to the date of death of the Deceased, being managed by the Applicant in his capacity as the attorney for property of the Deceased. The Applicant has, in his capacity as the Estate Trustee, continued to manage the properties since the date of death. There is no evidence as to the value of the real estate which appears to fall into the residue of the Estate.
• The Deceased wanted the Bank Accounts to be transferred to the Applicant by right of survivorship so as to avoid:
  • Any issues with members of the Deceased’s family;
  • Anyone knowing about the transfer of ownership of the Bank Accounts; and
  • Tax implications.
• Given that Grodzki was the attorney for property of the Deceased while the latter was still alive, he could in that capacity have accessed the Bank Accounts. Grodzki did not need the status of joint owner of the Bank Accounts so as to access them. As noted above, a copy of the Power of Attorney for Property is not included in the record. There is only the affidavit evidence of the Applicant to the effect that he was named by the Deceased as the latter’s attorney for property.
• Having had access to the accounts in his capacity as the attorney for property, Grodzki could have made a gift from the Deceased by transferring funds from the accounts to his own account(s). He never did so. The lack of records with respect to the Bank Accounts and the absence of any evidence from Grodzki as to his management of the Bank Accounts over time result in a deficiency in the evidence on that point.
• One of the accounts – the Royal Bank account – was closed subsequent to the date on which the Declaration of Intention was signed and prior to the date of death. Therefore only the first four of the five accounts listed in the Declaration of Intention are to be addressed on the application. As noted above, there is no evidence before the Court as to when or why the Royal Bank account was closed.

[69] The matters listed above may be significant in the determination on this application. If so, the evidence with respect to these matters must be properly before the Court.

b) The Declaration of Intention

[70] In discussing the issues arising from the wording of the Consent given by Aaron Sieja, I identified the potentially ambiguous wording of paragraph 2 of the Declaration of Intention. My inability to make a determination as to the substantive effect of the Declaration of Intention does not rest solely on the potentially ambiguous wording of that paragraph.

[71] In support of the claim for the primary relief – transfer of ownership of the Bank Accounts to Grodzki solely by right of survivorship – the Applicant relies on two cases: Pecore v. Pecore and Pecore, 2007 SCC 17, 2007 SCC17, [2007] 1 S.C.R. 795 and Sawdon Estate v. Watch Tower Bible & Tract Society et al., 2012 ONSC 4042, 78 E.T.R. (3d) 235 [ Sawdon ]. Both cases are distinguishable from the matter before me because they each deal with accounts which were jointly held by the Deceased and another at the date of death.

[72] These two cases, however, identify matters to be considered when making a determination with respect to bank accounts that are jointly owned as of the date of death:

• A joint account comes into being when an account at a bank is opened in the names of two or more individuals. Typically, the agreement with respect to the account must be signed by both individuals.
• The individuals opening a joint account may have the option of opening the account with or without the right of survivorship. In the matter before me there is no evidence from the Bank of Nova Scotia or the CIBC as to what options would have been available to the Deceased had he carried out his stated intention to change the ownership of the Bank Accounts to joint with Grodzki.
• A bank’s “paperwork” is not necessarily determinative of the issue of whether or not the residuary beneficiaries have a beneficial interest in the Bank Accounts: see Sawdon at para. 77.

[73] Additional case law is required in support of the application – in particular the primary relief claimed.

c) The Estate

[74] There is no evidence demonstrating that the Applicant has given any consideration to the financial implications for the Estate and, in particular, the individual respondents in their capacity as residuary beneficiaries, depending on the outcome of the application. For example, it is unclear whether the Applicant has considered and whether the individual respondents have been given the opportunity to consider the following matters:

• Whether a passing of accounts by Grodzki in his capacity as attorney for property for the Deceased is required before the Estate is to be administered? This issue is raised given the lack of any records from the respondent banks as to the amount of money in the Bank Accounts over time.
• The monetary value of their respective shares in the Estate depending on whether the residue includes or excludes the Bank Accounts?
• The potential tax consequences to the Estate in the event a finding is made that the Deceased intended to make a gift, upon his death (i.e. not as part of a right of survivorship), of the Bank Accounts to Grodzki?
• Who is responsible to pay the costs of this application?

[75] The matters listed above serve as examples of the conflict between the Applicant’s fiduciary obligations and Grodzki’s personal interest in the outcome of the application.

Disposition

[76] The overall value of the Estate, in particular if the Bank Accounts fall into the Estate, is significant. Regardless of the monetary amounts involved, the Applicant is required to approach his duties as the Estate Trustee mindful of his fiduciary obligations to the beneficiaries of the Estate. To that end, and taking into consideration the procedural and substantive deficiencies with respect to this application, I order as follows:

1. The application is adjourned.
2. The Applicant shall serve on the respondents, in accordance with the Rules of Civil Procedure, a copy of each of this endorsement and the order issued and entered pursuant to this endorsement;
3. The Applicant shall obtain legal advice with respect to the procedural and substantive issues on this application from counsel independent of his current lawyer of record.
4. In the event the Applicant proceeds with the application, he shall: a) Bring a motion for leave to amend the notice of application to address the requirements of rule 17.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. b) Serve on the respondents, in accordance with the Rules of Civil Procedure, a revised (not supplementary) application record; c) Include in the revised application record the amended notice of application and such evidence as the Applicant determines is required to support the relief sought; and d) Take the additional steps necessary for the application to brought back before me.
5. The costs of the application to date, including the appearance before me on March 20, 2016, are reserved to the further return of the application or as provided in paragraph 6 below.
6. In the event the Applicant determines that he will not proceed further with this application, and the parties are unable to agree upon costs of the application, any one or more of the parties to the application may bring the matter back on before me for a determination of the issue of costs of the application.

Madam Justice Sylvia Corthorn

Released: May 31, 2016