COURT FILE NO.: 6967-13 DATE: 2017/06/30 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER of the Estate of Timothy Robert Bryant, deceased B E T W E E N:
PETER BEST, Estate Trustee During Litigation Peter Best, appearing in person Applicant
- and -
STEVEN TIMOTHY BRYANT Steven Bryant, not appearing Objector
HEARD: June 9, 2017 ellies j.
REASONS FOR DECISION
OVERVIEW
[1] Timothy Robert Bryant (“the deceased”) died on April 9, 2013. He was survived by his common-law spouse, Lynette Burton, and by two adult children from a previous relationship, Steven Timothy Bryant and Sarah Bryant.
[2] The deceased left a will, in which he directed that the residue of his estate be divided equally among all three individuals. In the will, the deceased named Ms. Burton as the executrix and trustee. The alternate executrix and trustee was Ms. Bryant.
[3] Following the death of the deceased, a number of different proceedings were commenced in this court. In one of them, Mr. Bryant filed a notice of objection opposing the appointment of either Ms. Burton or Ms. Bryant as estate trustee. He also raised the issue of the validity of the deceased’s will on the basis of a lack of testamentary capacity (undue influence) and on the basis that the signature on the will was not that of the deceased.
[4] Ms. Bryant brought a motion for directions. That motion resulted in an order being made on January 17, 2014, appointing Peter Best, a senior lawyer, as Estate Trustee During Litigation (“ETDL”).
[5] In the present proceedings, Mr. Best seeks to pass his accounts. Mr. Bryant filed a notice of objection on May 2, 2017. Shortly before the matter was to proceed, Mr. Bryant notified Mr. Best and the court that he would be seeking an adjournment. Mr. Best opposed Mr. Bryant’s request and the matter proceeded before me.
[6] Mr. Bryant failed to appear at the hearing, relying instead on a written request to adjourn sent by e-mail to the court through the trial coordinator. I invited argument from Mr. Best on the issue of the adjournment, reserved on that issue, and proceeded to hear the matter on its merits. At the conclusion of the hearing, I dismissed the request to adjourn and granted judgment passing the accounts for reasons to be delivered. These are those reasons.
BACKGROUND
[7] In addition to the proceedings to which I have referred, on May 16, 2014, Ms. Burton commenced two actions. One was against the estate and TimPaq Holdings Inc. (“TimPaq”), a corporation owned and controlled entirely by the deceased. In that action, Ms. Burton claimed an interest in a home owned by TimPaq on Lady Ashley Court (the “Lady Ashley property”), in which she and the deceased were residing at the time of his death, and in other properties owned by TimPaq. The other action was commenced against TimPaq only and sought damages for wrongful dismissal, which claim arose after her employment with TimPaq was terminated by Mr. Best.
[8] On June 13, 2014, a judicial mediation was held. As a result of the mediation, the parties entered into minutes of settlement which resolved Mr. Bryant’s challenge to the validity of the will and Ms. Burton’s two lawsuits.
[9] Subsequently, Mr. Bryant brought a motion in which he sought to “nullify” the minutes of settlement and to remove Mr. Best as ETDL. That motion was dismissed by Gauthier J. for reasons delivered on January 9, 2015. I will refer again to those reasons in the discussion below.
[10] In October 2016, Mr. Best brought a motion seeking to remove himself as ETDL and an order directing the passing of accounts. Mr. Best’s motion was based on the behaviour of Ms. Bryant and Mr. Bryant towards him, the latter of which Mr. Best characterized as being “degrading, antagonistic and destructive”.
[11] Mr. Best’s request to be removed as trustee was dismissed by Cornell J. on October 7, 2016, without prejudice to a further application being brought on further material, if a material change in circumstances occurred. Cornell J. ordered that there be an interim distribution to each beneficiary and that the costs of the motion totalling $42,298.71 be deducted from the interim distribution payable to Mr. Bryant.
[12] Cornell J. also ordered that the costs of the proceedings before Gauthier J. in the amount of $61,446.92 and $21,600.17 be deducted from the shares of Mr. Bryant and Ms. Bryant, respectively.
[13] In his order of October 7, 2016, Cornell J. extended Mr. Best’s powers as trustee. He endorsed the record on that date as follows:
The duties of Mr. Best shall fully encompass those of an estate trustee and shall not be limited to those of an estate trustee during litigation.
[14] Mr. Best has since disposed of the deceased’s property in accordance with his mandate and the minutes of settlement. With the help of an accountant, Norman Cecutti, Mr. Best wound up TimPaq. Effective October 31, 2016, the remaining assets of TimPaq, which consist of approximately $300,000 in cash, have been transferred to Mr. Best’s trust account, so as to prevent any further interest accruing to the now non-existent corporation. Mr. Best and Mr. Cecutti testified that one further passing of accounts will be necessary once Mr. Best is in a position to distribute the remainder of the estate.
ISSUES
[15] There are three issues in this application:
(1) Should Mr. Bryant be granted an adjournment? (2) If not, should the judgment sought on passing of accounts be granted? (3) If the judgment is granted, should Mr. Bryant be made solely responsible for the costs of the hearing?
ANALYSIS
Issue 1: Should the matter be adjourned?
[16] June 9 was actually the second date scheduled for the passing of accounts in this matter. The matter was first scheduled to proceed in March 2017. However, it could not proceed at that time for two reasons: Mr. Best had not filed all of the documents necessary and Mr. Bryant indicated that he was not available. Accordingly, a new date was set for June 9, 2017. That date was set in consultation with Mr. Bryant. It was confirmed in an e-mail message sent from Mr. Best to Mr. Bryant on February 23, 2017. In the message, Mr. Best confirmed that Mr. Bryant wished to attend the hearing. A copy of the message was sent to other parties interested in the estate.
[17] After Mr. Bryant served and filed the notice of objection, Mr. Best and Mr. Bryant exchanged electronic messages relating to the objections raised. Despite the regular exchange of messages between them, it was not until June 1, eight days before the matter was scheduled to proceed, that Mr. Bryant first communicated that he would be requesting an adjournment of the hearing. In a message to Mr. Best sent on that date, Mr. Bryant indicated that he was currently on a flight from Uganda to Dubai. He stated that he was a coach for the Canadian National Men’s Cricket team and had been in Dubai for the past 13 days at the ICC Cricket Championship. He further indicated that he was en route to the Isle of Man for business meetings relating to a product for which he was a sales agent.
[18] Mr. Bryant advised Mr. Best that he had been unable while in Uganda to prepare an affidavit for service upon Mr. Best and that he would only be returning to Canada on the 8th of June. Although he did not explicitly ask Mr. Best if he would consent to an adjournment, he did state that if Mr. Best was unwilling to change the date of the hearing from June 9, he would write to the court to inform it of his situation.
[19] Mr. Best wrote to advise Mr. Bryant that he would not consent to an adjournment of the date for the hearing. He inquired as to whether Mr. Bryant would be attending the hearing in person. Mr. Best was unable to secure a response to that question from Mr. Bryant, despite several subsequent requests. Instead, Mr. Bryant wrote to the trial coordinator and requested that she provide the court with a copy of an e-mail from him dated June 8, 2017, as well as an e-mail he sent to her dated June 7, 2017, attached to which were a number of photographs. The photographs appear to depict Mr. Bryant enjoying a first-class flight onboard a United Emirates plane and at the ICC world cricket league championship. In addition, there is a photograph depicting airline tickets for travel aboard a United Emirates flight between Dubai and the Isle of Man.
[20] As I indicated above, no one appeared on behalf of Mr. Bryant on June 9.
[21] At the conclusion of the hearing, I dismissed the request for an adjournment. My reasons for doing so are as follows:
The adjournment request was for unnecessary affidavits
[1] In his e-mail of June 7, Mr. Bryant indicated that he wished to present information to the court by way of affidavit, but that he had been unable to do so by virtue of “extenuating circumstances”. However, Mr. Best submits that affidavit evidence is unnecessary. He is probably correct.
[2] The governing rule is r. 74 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. Rule 74.18 specifies the material to be filed on an application to pass accounts. The filing of a notice of objection to accounts is dealt with in Rule 74.18(7). That rule provides:
A person who is served with documents under subrule (3) [a person who has a contingent or vested interest in the estate] … and who wishes to object to the accounts shall, at least 35 days before the hearing date specified in the notice of application, serve on the applicant, and file with proof of service, a notice of objection to accounts (Form 74.45).
[3] Rule 74.18(11.5) deals with the contested passing of accounts. While the rule imposes certain obligations on the applicant (Mr. Best, in this case) with respect to filing, there is no obligation on the part of an objector to file anything other than the notice of objection. Where the matter proceeds to a hearing, Rule 74.18(13.1) provides that the court may order any issue to proceed to trial and give directions with respect to that trial. Typically, at a contested hearing on the passing of accounts, evidence is adduced by way of viva voce testimony and not by affidavit evidence. Certainly, none of the leading texts which I have consulted make any mention of the requirement that affidavit evidence be filed by an objector: see Carmen S. Thériault, Widdifield on Executors and Trustees, loose-leaf (2016 - Rel. 11), 6th ed. (Toronto: Thomson Reuters Canada Limited, 2016), at Chapter 14; Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed., (Toronto: Thomson Reuters Canada Limited, 2016), at Chapter 22; Garry D. Watson & Derek McKay, Holmstead and Watson, Ontario Civil Procedure, loose-leaf (2016 - Rel. 7), (Toronto: Thomson Reuters Canada Limited, 1993, 2016).
[4] However, while affidavit evidence on the part of an objector may not be necessary under r. 74.18, it may still be permissible by virtue of r. 39. Rule 39.01 deals with evidence on an application. It provides that evidence “may be given by affidavit unless a statute or these rules provide otherwise.” Neither r. 74 nor r. 39 specifically exempt the application of r. 39 to applications brought under r. 74.18. This is unlike r. 38, which deals with the procedure on an application. Rules 38.07(4) (regarding notices of appearance), 38.09(7) (regarding application records and factums), and 38.10(4) (regarding the disposition of an application) all specifically exempt applications under r. 74, or under parts of r. 74.
[5] Thus, an argument can be made that affidavit evidence may be filed by an objector under r. 74.18. Fortunately, I do not need to decide the issue. As I am about to explain, I would not have granted an adjournment to allow these particular affidavits to be filed, in any event.
The proposed affidavit evidence was largely irrelevant
[6] In his message to the court of June 7, 2017, Mr. Bryant set out the evidence that he would like to have placed before the court. This includes:
Audio recordings of various proceedings undertaken in connection with the litigation surrounding this estate. Mr. Bryant alleges that the recordings show:
- Mr. Best, the judge who presided over the judicial mediation (the “mediation judge”), counsel for Ms. Burton, and Mr. Best’s daughter (also a lawyer) discussing how to cover up a fraud that was perpetrated within TimPaq;
- the mediation judge and counsel for Ms. Burton sharing a degrading racist sex joke about Ms. Bryant and her husband;
- the mediation judge making a racist joke to Mr. Bryant about being “Native”; and
- Mr. Best conspiring with other counsel and the court reporter to strike things from the record;
Evidence of a police officer threatening Mr. Bryant with criminal harassment relating to allegations Mr. Bryant wanted the police to investigate concerning counsel for Ms. Burton; and
Evidence that Mr. Best told Mr. Bryant he has an unregistered handgun, thereby intimidating Mr. Bryant.
[7] In my view, none of the proposed evidence would have been relevant to the issues on the passing of accounts.
No valid explanation has been offered for failing to file the affidavits earlier
[8] As I indicated above, the date of June 9 was set in consultation with Mr. Bryant and confirmed in an e-mail dated February 23, 2017. Mr. Bryant did not leave the country for Uganda until May 18, or thereabouts. No explanation has been offered by Mr. Bryant for failing to file the affidavits before he left for Uganda.
Mr. Bryant was actually available to attend the hearing
[9] In an e-mail message dated June 1, Mr. Bryant advised Mr. Best that he would be returning to Canada on the 8th of June. In his June 7 e-mail to the trial coordinator and to Mr. Best, Mr. Bryant stated:
I am en route to return to Sudbury in time for court on Friday [June 9] however it would seem a waste of the courts (sic) time to proceed with a hearing where one party has not been able to serve or receive affidavits required to argue the passing of accounts.
[10] By Mr. Bryant’s own admission, therefore, he was able to attend the hearing on June 9th. Even if he felt that it might be a waste of time, he ought to have appeared given that he did not know the outcome of his request to adjourn the proceedings. Had he done so, he would have learned that the court ordinarily hears viva voce testimony and the hearing could have proceeded at that time.
An adjournment would prejudice the other beneficiaries
[11] An adjournment would serve only to prejudice the other beneficiaries, neither of whom objected, and both of whom have already had to wait an inordinately long period of time for their full inheritance as a result of the contentious nature of this estate.
An adjournment would prejudice Mr. Best
[12] Since Mr. Best’s appointment as ETDL, Mr. Bryant has consistently attacked his integrity. Many of his comments have not only been inappropriate; they have bordered on being criminal. In his e-mail of June 7 to the trial coordinator and Mr. Best, Mr. Bryant said of Mr. Best:
I would love to see him locked away in prison with a population of inmates where 23% are Native so he can get a taste of what Native justice looks like.
[13] In an e-mail dated June 8, addressed to the same parties, Mr. Bryant wrote to Mr. Best that he was “not prepared to take your lies and deceit on by memory.”
[14] In an e-mail sent that same day, at 8:58 p.m. to Mr. Best’s daughter, Mr. Bryant wrote:
Brace yourself I am going to gut you and your dads (sic) legal career like a fish.
[15] Granting an adjournment of the passing of accounts would only have provided Mr. Bryant with more time within which to send such abusive and uncalled for e-mails.
Conclusion
[16] For all of these reasons, Mr. Bryant’s request for an adjournment was dismissed.
Issue 2: Should the judgment sought on passing of accounts be granted?
[17] Mr. Bryant raised objections to both Mr. Best’s accounting of the estate and to the amount Mr. Best sought for compensation. I will deal first with the objections relating to compensation.
Objections to compensation
[18] The order of January 17, 2014, set the amount of compensation to which Mr. Best was entitled. By virtue of para. 2 of the order, Mr. Best is entitled to “reasonable compensation which shall be calculated on the basis of $400.00/hour subject to review of final accounts by the Court.”
[19] By far the majority of Mr Bryant’s objections to the compensation sought by Mr. Best are in the nature of attacks on Mr. Best’s personal and professional integrity. He accuses Mr. Best of violence, perjury, dishonesty, conspiracy, cruelty and ineptitude, among other things. These allegations were dismissed by Gauthier J. who wrote, at para. 132 of her January 9, 2015, reasons:
On all of the evidence, I conclude that, at all times, Peter Best exercised his duties as estate trustee in a reasonable, honest, and appropriate manner.
[20] Based upon the evidence I have seen and heard, I wholeheartedly agree.
[21] There were only two objections to the compensation sought by Mr. Best that had any substance. Both relate to fees charged by Mr. Best for time spent by him dealing with complaints made by Mr. Bryant.
Fees relating to the human rights complaint
[22] One of the complaints made by Mr. Bryant was made to the Human Rights Tribunal of Ontario (HRTO). In the complaint, Mr. Bryant alleged that Mr. Best discriminated on the basis of race, colour, ancestry, ethnic origin and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19. That complaint was later dismissed, but not before Mr. Best spent 3.6 hours dealing with it.
Fees relating to the criminal complaint
[23] A second complaint was made by Mr. Bryant to the police. In that complaint, Mr. Bryant alleged that he had been assaulted by Mr. Best when Mr. Best thrust an envelope at him. As a result of the complaint, Mr. Best was required to attend the police station for an interview. No charges were laid as a result of the complaint. Mr. Best seeks to charge the estate one hour for the time he spent being interviewed.
[24] No formal objection was made with respect to the time spent by Mr. Best in connection with Mr. Bryant’s complaint to the police. However, Mr. Bryant did object to the time spent by Mr. Best dealing with the complaint to the HRTO.
Conclusion
[25] In my view, the compensation sought by Mr. Best with respect to both complaints is reasonable and ought to be allowed. The outcome of the complaints and the history of this matter lead me to agree with Mr. Best’s position that the complaints were frivolous and were yet another attempt by Mr. Bryant to make Mr. Best’s job of administering this estate as difficult as possible.
Objections to the accounting of the estate
[26] Notwithstanding Mr. Bryant’s failure to appear, I heard evidence regarding all of Mr. Bryant’s objections to the accounts relating to the estate.
Ms. Burton living at the Lady Ashley property
[27] Mr. Bryant objected that Mr. Best failed to force Ms. Burton to repay the money she was “stealing” from TimPaq by living at the Lady Ashley property for free. However, Mr. Bryant’s claim that Ms. Burton was living at the Lady Ashley property was settled at the mediation on June 13, 2014, when the lawsuit in which Ms. Burton claimed an interest in the Lady Ashley property was resolved by way of a payment to her in the amount of $25,000 in full satisfaction of her claims.
Failing to complete an accurate account of the deceased’s personal property
[28] Mr. Bryant objected that Mr. Best had failed to complete an accurate account of the deceased’s possessions owned at the time of his death. However, this allegation was dealt with and decided against Mr. Bryant by Gauthier J. In her reasons of January 9, 2015, she wrote, at para. 125:
After the Minutes of Settlement were entered into, Peter Best had no obligation to chase down the personal property of Timothy …
Missing vehicles and trailers
[29] As mentioned, Gauthier J. held that Mr. Best was not required to chase down the deceased’s property after the minutes of settlement were signed. Nonetheless, Mr. Best testified before me that he was unaware of any missing vehicles. As to the trailers, he surmised that Mr. Bryant might be referring to two relatively new trailers on which two old boats had been kept. He testified that those boats had been conveyed to the three beneficiaries after he had tried unsuccessfully to sell them.
Taxes on TimPaq
[30] Mr. Bryant alleged that “all three beneficiaries were forced to pay the taxes when an entire overdraft account [for TimPaq] was claimed as drawing”, despite the fact that the deceased “never drew a penny out of the corporation”.
[31] Mr. Best testified that the deceased and Ms. Burton had paid for all of their living expenses using a line of credit advanced to TimPaq. As a result, those expenses could not be written off by the corporation as a legitimate tax-free expense. The outstanding balance on the line of credit was repaid using the proceeds of a life insurance policy to which I refer below.
Corporate Assets
[32] Mr. Bryant alleged that Mr. Best failed to take “a complete account” of corporate assets as at the time of the deceased’s death.
[33] Mr. Best testified that the only assets owned by the corporation at the time of death were three pieces of real property and the proceeds of two life insurance policies. The real property was sold in accordance with the minutes of settlement. One of the insurance policies in question was on the life of the deceased’s business partner and the other was on the deceased’s life. The former policy paid out $400,000 on the date of the insured’s death, the latter paid out $250,000.
[34] All of these corporate assets have been accounted for.
Taxes on the Manitoulin Property
[35] As part of the settlement of the various claims relating to the estate, the parties agreed that Mr. Bryant would have a right of first refusal with respect to a 100 acre parcel of property on Manitoulin Island that had been owned by the deceased. This parcel was eventually transferred to Mr. Bryant, who objected that Mr. Best had failed to demonstrate how the property taxes relating to that parcel had been paid.
[36] Mr. Best testified that the property taxes were paid as part of the usual adjustments on closing and that Mr. Bryant had acted in the transfer through his own lawyer.
Conclusion
[37] I am satisfied based on the evidence that none of the objections relating to the accounts of the estate are valid.
Issue 3: Should Mr. Bryant be made solely responsible for the costs associated with the hearing?
[38] The information that I have set out above regarding the allegedly missing trailers, the Timpaq line of credit, the personal property of the deceased and the taxes on the Manitoulin property was provided by Mr. Best to Mr. Bryant in the correspondence that passed between them after the notice of objection was filed. However, Mr. Bryant failed or refused to withdraw any of his objections. As I stated earlier, he also failed or refused to advise Mr. Best whether he would attend the hearing on June 9.
[39] As a result, Mr. Best retained counsel and prepared for a contested hearing. Mr. Best felt, and I agree, that he should be represented by counsel in the event that Mr. Bryant appeared. Although Mr. Best’s lawyer was ultimately not required to appear, he was on stand-by and prepared to do so until the very last minute.
[40] As part of the judgment on the passing of accounts, Mr. Best proposed that Mr. Bryant be solely responsible for the fees charged by Mr. Best relating to this proceeding and that this amount should be deducted from the final distribution of the estate payable to Mr. Bryant. He also sought a similar order with respect to the costs incurred in retaining counsel and having him on stand-by.
[41] I granted both requests. In my view, it would be unfair to saddle the other beneficiaries with these costs in light of the specious nature of many of the objections and the fact that Mr. Best provided Mr. Bryant with satisfactory answers to the others in advance of the hearing; a hearing that Mr. Best did not see fit to attend.
CONCLUSION
[42] For the foregoing reasons, the judgment sought on the passing accounts by Mr. Best was granted in the form attached to these reasons as Appendix “A”.
Ellies J.
Released: June 30, 2017
COURT FILE NO.: 6967-13 DATE: 2017/06/30 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER of the Estate of Timothy Robert Bryant, deceased BETWEEN PETER BEST, Estate Trustee During Litigation Applicant – and – STEVEN TIMOTHY BRYANT Objector REASONS FOR decision Ellies J. Released: June 30, 2017