ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-1222-ES DATE: 20161011
IN THE ESTATE OF JAMES WILLIAM GRIER, DECEASED
B E T W E E N:
DAVID JAMES GRIER BY HIS LITIGATION GUARDIAN Applicant/Respondent on Cross-Motion Douglas Loucks, counsel for the Applicant/Respondent on Cross-Motion
- and -
JANET LYNN GRIER BY HER LITIGATION GUARDIAN Respondent/Applicant on Cross-Motion Frances Wood, counsel for the Respondent/Applicant on Cross-Motion
HEARD: August 29, September 20, 2016
Decision: motion to strike Notice of Objection and cross-motion for directions
Fairburn, J.
A. Overview
[1] David, Janet and Sandra Grier are the children of James Grier. Garret Grier is Sandra’s son. James Grier died on November 25, 2013. His estate is yet to be dealt with because David and Janet have been engaged in a dispute about the actual value of the estate and, assuming an accurate value can be arrived upon, the manner in which it should be distributed.
[2] For some time prior to his father’s death, David held James’ power of attorney for property. Following his father’s death, and pursuant to a court order, David attempted to pass accounts. Janet filed a notice of objection. Multiple court orders have been made, but little progress has been made in moving this matter forward.
[3] David now brings a motion requesting that Janet’s notice of objection to the passing of accounts be struck because she has failed to comply with various prior court orders. Janet brings a cross-motion saying that David has failed to provide the information necessary to determine whether the accounts are in order.
[4] To complicate matters, there are two wills that reflect different beneficiaries. David is a beneficiary on the first. He is replaced by Garret on the second. To even further complicate matters, owing to various medical conditions, litigation guardians have replaced both David and Janet since this ordeal began.
[5] For the reasons that follow, despite the length of time that the passing of accounts has taken to conclude, it is premature to strike the notice of objection. Instead, directions are given in an effort to move this matter meaningfully forward from this point on.
B. The Motion and Cross-Motion Are Rooted in a Long History
[6] This matter has a long and somewhat tortured history. What follows is a brief summary of some of the relevant events.
November 23, 2000: The First Will [7] James Grier appointed his son David to be the executor and trustee of a will signed on November 23, 2000. He directed that the residue of his estate be divided into three equal shares, to be distributed evenly between his children, David, Janet and Sandra.
March 6, 2013: James Grier makes David and Tamara Grier his Power of Attorney for Property [8] Tamara Grier is David Grier’s wife. On March 6, 2013, James Grier signed a personal power of attorney for property, appointing both his son David and his daughter-in-law Tamara to this role.
September 27, 2013: The Second Will [9] In a will dated September 27, 2013, James Grier revoked all former wills. He removed David and made Janet the executor and trustee of the new will. Like the first will, he directed that the residue of his estate be divided into three equal shares. Unlike the first will, the three shares were to be evenly distributed between Janet, Janet as trustee for Sandra, and Janet as trustee for Garret (the grandson of James and son of Sandra). [10] The second will contained the following direction: “Given that I am unhappy with the way that a prior Power of Attorney has been used, I am consciously choosing not to provide anything in my Will for my son David Grier, or his family.”
October 4, 2013: Consent Order of Van Melle J. [11] Justice Van Melle issued a consent order that all family members be permitted access to James Grier. Among other things, the order directed that no party hold themselves out to be the attorney of property of James W. Grier without a further court order. David Grier was required to pass his accounts in the Superior Court of Justice. The relevant 45-day notice had to be given within 120 days of the order.
November 25, 2013: The Passing of James Grier [12] James Grier died.
January 31, 2014: Notice of Application to Pass Accounts [13] David Grier gave notice of his application to pass accounts. In his affidavit, sworn January 30, 2014, he said that he did not exercise his powers of attorney until August 7, 2013 and stopped doing so as of Van Melle J.’s order on October 4, 2013. Therefore, he said that the relevant period for the passing of accounts was August 7 to October 4, 2013. [14] The documentation provided with the passing of accounts, included in the motion record before me, shows transfers from various accounts into David Grier’s TD accounts. The court was informed on this motion that David Grier merged his father’s money with his own accounts to make his responsibilities as a property power of attorney simpler.
March 14, 2014: Notice of Objection to Accounts [15] Janet Grier filed a notice of objection. The objection focused on what are said to be missing documents and information, including the absence of a statement of original assets. Janet also disputed the end date for the passing of accounts, suggesting that it should extend past October 4, 2013.
March 25, 2014: Response to Objection to Pass Accounts [16] A response was filed. The need for a statement of original assets was disputed. Many of the other requests for information were either answered or disputed.
June 3, 2014: Order of Trimble J. [17] Justice Trimble ruled that the end date for the passing of accounts was October 4, 2013, the date of Van Melle J.’s order. This is the last date on which David Grier’s activities with respect to his father’s money “could have occurred”. [18] Justice Trimble’s order refers to the issues to be tried, including which will governs. Each party was to serve an affidavit of documents and attend for discovery. The Canada Trust Company was appointed estate trustee during the litigation and assigned the responsibility of maintaining the property of the deceased. All property for James’ estate was to be moved into the care of the estate trustee. [19] During the argument of this motion, the moving party said that all money except $12,000 had been returned by David to the estate and was now managed by the estate trustee appointed under the Trimble J. order. The moving party also brought to the court’s attention that a large sum of money appeared to be missing from the estate, a sum that was located after the initial argument was made and decision taken under reserve. This latter issue is addressed in more detail below. [20] The balance of the application for the passing of the accounts was adjourned sine die.
September 10, 2014: Affidavit of Documents of David Grier [21] While David Grier prepared and served his affidavit of documents, Janet Grier’s affidavit remains outstanding to this day.
Fall 2014, Winter of 2014/15, Spring 2015: Parties Communicate [22] Counsel for the parties exchanged correspondence regarding the estate of James Grier and David’s handling of accounts. I have reviewed all of this correspondence. Counsel for Janet asked for follow-up information so that she could do her “due diligence and ensure that we are in agreement with respect to the balance of the estate assets”. The correspondence from Janet’s counsel suggests that while there is a potential for settlement, she would first need more information regarding the value of the estate. [23] Some of the information requested was provided. In correspondence exchanged in May of 2015, the parties were far apart in terms of the potential value of the estate.
May 12, 2015: Consent Order of Woollcombe J. [24] David Grier brought a motion for directions. The parties arrived upon a consent order establishing a timetable. Among other things, Janet Grier was required to serve her affidavit of documents on or before June 15, 2015 and then discoveries were to be scheduled and completed no later than July 31, 2015.
July 22, 2015: David Grier Becomes Unwell [25] Sadly, David Grier developed brain cancer. His wife took over as his litigation guardian.
Summer 2015: The Affidavit of Documents [26] Janet Grier’s affidavit of documents did not come. Counsel communicated in the middle of July and it was said that the affidavit would be addressed soon. By mid-August, counsel to Janet said that they were still working on the affidavit of documents and that it would be provided soon. A few days later, Janet’s counsel sent a letter saying that Janet was “currently unwell” and not able to meet for purposes of instructions.
September 15, 2015: Second Order of Woollcombe J. [27] David Grier (through his litigation guardian) pursued the matter. It came back before Woollcombe J., who ordered that Janet prepare and serve an affidavit setting out the medical reasons why she had been unable to comply with prior court orders.
November 13, 2015: Order of Edwards J. [28] It turns out that Janet Grier has a debilitating mental illness. A litigation guardian was appointed by Edwards J. The lawyer representing Janet Grier is now representing her in her capacity as a litigation guardian.
March 11, 2016: Moving Party Brings Motion [29] David Grier, through his litigation guardian, brought a motion on March 11, 2016, seeking the relief he now seeks. The motion was adjourned to a long motion date.
C. The Motion and Cross-Motion
[30] David Grier’s motion seeks to have the notice of objection filed by Janet Grier struck out so that he can proceed with an application for probate of the November 23, 2000 last will and testament of James Grier. He says that this is the will that governs.
[31] He argues that it is only fair to strike out the notice of objection. Janet Grier has not complied with multiple court orders, including the fact that she still has not filed her affidavit of documents. Her failure to do so is unfairly holding up his ability to probate the will signed in 2000. David says that this is the governing will. He argues that the only fair and just remedy is to strike out the notice of objection. To fail to do so will encourage the further consumption of time and money in an already too protracted litigation process.
[32] While he acknowledges the benefit of determining matters on their merits, he says that this principle should give way where the cost of the litigation will be disproportionate to the amount involved. Among other authorities, he relies upon Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 for this proposition.
[33] Janet Grier responds that while mounting costs are a legitimate concern, the testator’s wishes should be cared for. She brings a cross-motion, seeking a full and proper accounting of all transactions conducted by the moving party while acting as an attorney for James Grier’s property and as the surviving account holder of James Grier’s accounts following the latter’s death. She says that in order to arrive upon a just and proper resolution as to the distribution of the estate, the value of the estate must first be determined. This has never been done and, Janet says, cannot be done until such time as David provides the details requested.
D. Resolution of the Motion and Cross-Motion
[34] There is much to be said for David Grier’s position. It is most concerning that the equivalent value of an estate could be entirely consumed by litigation. While the parties are not currently close to costs that would hit that level, without due care being exercised, this could be the result.
[35] The motion material includes a TD statement dated June 30, 2016, relating to the holdings in James Grier’s estate. The statement shows a total value of $229,777.73 in the estate.
[36] As above, at the initial hearing of the application, counsel to David Grier informed the court that he owes $12,000 to the estate. In addition, counsel informed the court that there might be another large sum of money not accounted for in the estate accounts and that the matter was being looked into.
[37] Following the hearing of the motion, counsel to Janet contacted the trial coordinator and asked to re-attend to address the matter. On September 20, 2016, counsel provided another affidavit addressing the outstanding sum of money and argument was heard.
[38] When David took ill in March 2016, he directed that funds belonging to the estate, but that had not been frozen by the Estate Trustee During Litigation (ETDL), be moved to another account. The TD Bank representative wrote:
… account 7DK102A is now at a zero balance because in March of this year David’s health was declining and he was concerned about the funds attracting probate etc for estate reasons and asked I move it to the joint account 8R5139A.
It is agreed by the parties that these funds belong to the estate of James Grier. It seems that they were never frozen and David had access to them, directing TD to move them into his own account in March of this year.
[39] A direction was given by David’s counsel to return the money (a total amount of $139,844.11) to the original account. The funds are now governed by the ETDL. While I make no finding about the reason why these funds were not under the exclusive control of the ETDL in the first place, it is highly relevant that in March of this year, estate funds were being transferred at the sole direction of David.
[40] Proportionality in litigation is a critically important concept. As Karakatsanis J. held in Hryniak v. Mauldin, at para. 28, without “proportionate, timely and affordable” justice, the legal process can become “illusory”. David focuses on this concept when he says that the notice of objection should be struck so that he can move to probate the first will.
[41] In Traitses v. Traitses, 2014 ONSC 2102, [2014] O.J. No. 1579 (Sup. Ct.), at para. 2, Brown J. (as he then was), held that the Hryniak principle of proportionality applies with equal force in the context of estates proceedings. Proportionality is a common sense principle that applies to most, if not all areas of the law. Indeed, it is hard to imagine a situation where disproportionality would be the governing principle.
[42] The principle of proportionality does not mean that cases should not be determined on their merits. To the contrary, despite the importance of proportionality, the “principal goal” remains a fair process that results in the just adjudication of claims: Hryniak, at para. 29. Rule 1.04(1) of the Rules of Civil Procedure, suggests that proportionality can be achieved without sacrificing determinations on the merits: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” In other words, proportionality and determinations on the merits are not mutually exclusive concepts, but ones that work in tandem to achieve just results.
[43] David Grier argues that the costs incurred in this matter are already disproportionate to the ultimate amount that is in dispute. He says that this is a direct result of Janet’s conduct. He says that if the notice of objection is not struck, that the expense of the litigation might come to consume the value of the entire estate.
[44] David argues that it is fair to strike the notice of objection and move to probate the 2000 will because the only real difference between the two wills is that Garret replaces him as a beneficiary in the 2013 will. Neither Janet nor Sandra will be personally impacted by the will that gets probated since they receive the same share under both wills. As for Garret, he has shown no interest in the litigation and does not appear to be pursing his interest. (Janet’s counsel confirmed that this is also her understanding of Garret’s current position.)
[45] While Janet Grier has failed to comply with prior court orders, and this is a matter that must be taken seriously, the record is clear that she has been attempting to obtain information from David as to the manner in which he dealt with their father’s money when he was acting as his power of attorney. Janet provided a chart on this motion that summarizes some of the outstanding information regarding the use and movement of James’ money. A great deal of correspondence was also filed. Having regard to all of this material, and counsels’ submissions, I agree that the value of the estate remains a moving target.
[46] The fact that almost $140,000 of estate money was moved at James’s direction just in March of this year, and without any knowledge of Janet, demonstrates the point and lends credence to Janet’s concerns about the actual value of the estate. The suggestion that David owes the estate another $12,000 also suggests that a better accounting is needed.
[47] This is not to suggest that there is necessarily anything amiss in how David dealt with his father’s property. It is simply to observe that not enough information has been provided by David to permit an accurate understanding of how James’ property was dealt with and, in turn, the value of his estate. Janet has been attempting to obtain this outstanding information for some time.
[48] Janet argues that only when she has this information in hand will she know the value of the estate and be in a position to make meaningful decisions, including decisions about how the estate should be settled. This is important because, as reflected in Trimble J.’s June 3, 2014 order, Janet takes the position that the 2013 will governs.
[49] If the second will is valid, David is not a beneficiary and, even if Garret waives his interest in the estate, it does not mean that David can simply be inserted in Garret’s stead. These issues will all have to be determined on their merits. Alternatively, the parties can come to an agreement upon how to proceed. It seems that the first logical step, though, is to determine the value of the estate. The time has come for this to occur.
[50] It may well be that the entire estate (except the $12,000) is now sitting with the EDTL. There is no way of knowing this, though, until David makes better disclosure. While Janet could have moved in a much more timely way to ask for directions, it appears that there are certain health issues that may well have intervened.
[51] While striking the notice of objection would clear the way for David to attempt to probate the 2000 will, it would not clear the way to litigation free settlement of the estate. Janet would simply attempt to probate the 2013 will at the same time David took steps in relation to the other will. Things would become further mired in litigation. This would benefit no one and proportionality would be sacrificed.
[52] At this stage, it is most efficient to determine this matter one step at a time, starting with a proper valuation of the estate. While Janet could have been more timely in her original approach to this matter, particularly back when she initially filed her notice of objection to James’ attempt to pass accounts, her failure to do so should not cause the notice of objection to be struck. Life has intervened and both parties are now suffering from serious ailments.
[53] In the end, this matter must be determined on its merits, but with the principle of proportionality in mind. David Grier’s frustration is understandable. So too is Janet Grier’s. Litigation guardians now represent both and this matter should move forward as expeditiously as possible.
[54] While striking the notice of objection is a remedy that is clearly available to the court, non-compliance by Janet must be placed in the context of her attempts to obtain information and her blooming health difficulties. Weighed against her breaches of the prior court orders is the need to have proceedings determined on their merits. The result of this proceeding is not at all clear on its face. By refusing to strike the notice of objection, and giving directions that must be followed, it may actually result in less expensive proceedings. While the breaches are serious, they are to be considered against the entire context of the case and Janet’s health difficulties.
[55] Taking all of these considerations into account, justice requires that the motion to strike the notice of objection be dismissed. Justice also requires that a strict timetable to be set up to deal with this matter on a go-forward basis.
[56] Prior to becoming incapable of continuing with the litigation, Janet provided to her counsel many if not most of the documents necessary for her affidavit of documents. Counsel agreed that these documents could be provided. They should be and soon.
E. Conclusion
[57] The following schedule is ordered:
a. Janet (through her litigation guardian) will provide an affidavit of documents and serve it within 21 days of this order. Bearing in mind Janet’s health issues, if the litigation guardian cannot have contact with Janet, then the guardian will make best efforts to provide what documents are available and they will be accompanied by an affidavit setting out the steps taken to collect the documents. b. To the extent possible, David’s litigation guardian will provide a complete and accurate statement of James Grier’s original assets as of March 6, 2013, the date when David and his wife were appointed under a power of attorney. c. David’s litigation guardian will provide complete and accurate statements that show all transactions of all accounts for James Grier from March 6, 2013 to October 4, 2013, the period of time between when David and his wife were assigned the power of attorney and the issuance of Van Melle J.’s order. d. David’s litigation guardian shall provide complete statements that show where the withdrawals from ING account 3000086093 were being transferred to. This was a joint account between David and James Grier. e. David’s litigation guardian shall provide complete and accurate statements for the TD account 7DK102A and 8R5139, one held by David and one by David and Tamara Grier, and both of which were involved in the March 2016 transferring of estate money that has now been returned to the estate. The statements should be provided from March 6, 2013 to present. f. David’s litigation guardian shall provide complete statements of all sole or joint accounts following March 6, 2013, that have had any of James Grier’s money placed in them and or taken from them. If an account had any of James Grier’s money at any point, then records for that account must be provided following March 6, 2013 to present. g. Supporting documentation must be provided for all of the transactions specified on Exhibit “B” to the January 30, 2014 affidavit of David Grier, sworn in support of the application to pass accounts. For clarity, the document is entitled: “James Grier: Reconciliation of Banking Transactions, August 7, 2013 to October 3, 2013”. h. Complete and accurate statements to show the accounts where James Grier’s old age security and Canada Pension Plan for October 2013 were deposited to.
[58] All of the information to be provided by the moving party, David Grier, should be disclosed no later than December 5, 2016.
F. Costs
[59] If the parties cannot agree on costs, they may each provide no more than three pages of submissions on costs within 15 days of the release of these reasons.
Fairburn J. Date: October 11, 2016