Court File and Parties
Barrie Court File No.: CV-17-742-SR Date: 2018-12-21 Ontario Superior Court of Justice
In the Matter of the Estate of Thomas F. Scarff, deceased
Between: Robert Seymour Scarff, in his capacity as Estate Trustee of the Estate of Thomas Scarff, Applicant – and – John P. Scarff and Thomas Aidan Scarff, Objectors/Respondents
Counsel: Robert Seymour Scarff, Applicant, Self-Represented John P. Scarff and Thomas Aidan Scarff, Objectors/Respondents, Self-Represented
Heard: December 7, 2018
Reasons for Decision DiTomaso J.
Introduction
[1] This is a disputed passing of accounts. The deceased, Thomas F. Scarff, passed away on November 20, 2013, leaving seven children. Two of his sons, John P. Scarff (John) and Thomas Aiden Scarff (Thomas A.), are the objectors to this passing of accounts. The Executor and Trustee of the Estate is another son, Robert Seymour Scarff (Robert).
[2] These members of the Scarff family have had a long and acrimonious history. John and Thomas A. are estranged from Robert and their differences are irreconcilable. It seems the only time they meet is in court over their father’s relatively modest estate. They have litigated in Brampton and Barrie. There have been many attendances.
[3] I am mostly concerned about the proceedings in Barrie. I note the brothers Scarff are self-represented and have attended these court proceedings without the benefit of legal counsel. In some way, this might account for their repeated attendances, numerous filings and their obvious unbridled rancorous dealings.
[4] On December 7, 2018, a hearing was held regarding the objections of John and Thomas A. on the Application to pass the accounts by Robert. These are my Reasons.
Overview
[5] In Barrie, this matter has come before at least four different judges – before some on multiple occasions. To place the issues in context requires a summary of proceedings which has come with some considerable sorting out, given the degree of general disorder regarding the documentation.
[6] Nevertheless, after their father died on November 20, 2013, Robert was appointed the Executor and Trustee of his estate pursuant to the provisions of the Last Will and Testament of Thomas F. Scarff.
[7] The Estate value was $253,212.10.
[8] Robert proceeded to administer his father’s estate, but not without discord amongst the Scarff siblings. At the heart of these objections, John and Thomas A. contend they have not received their full payment of their share as beneficiaries of their father’s estate. For different reasons, they claim they have not been fully paid by Robert; that they have been shortchanged. For his part, Robert claims he has acted properly and in good faith as the Executor and Trustee of his father’s estate. He takes the position that the Objectors have been paid what they were owed and the objections ought to be dismissed.
The Brampton Proceedings
[9] Thomas A. commenced the first proceedings in the Superior Court of Justice at Brampton and obtained the order of Herold J., dated September 24, 2015, to pass accounts and the order of André J., dated October 5, 2016 (disputed by Robert) regarding, amongst other things, the payment to beneficiaries by Robert of monies from the Estate, the sale of the Estate property and also an order to charge Robert with fraud.
The Barrie Proceedings
[10] Thomas A., who resides in Barrie, commenced proceedings in the Superior Court of Justice at Barrie by way of Application, dated May 16, 2017. He sought outstanding payment of monies as a beneficiary of his father’s estate together with the payment of legal fees.
Application Returnable before Boswell J. on October 31, 2017
[11] This Application was returnable before Boswell J. on October 31, 2017. Boswell J. found Robert had failed to pass accounts despite having been ordered to do so more than two years prior. Robert claimed he was never served with the Application Record (in the Brampton proceedings) that led to the order to pass the accounts, or the Order of André J. Boswell J. ordered Robert to pass accounts within 90 days.
Notice of Application to Pass Accounts by Robert, returnable June 12, 2018
[12] Robert brought an Application to pass accounts which came before Healey J. at Barrie on June 12, 2018. She adjourned the hearing to August 14, 2018 in order for Robert to obtain further documentation from the AIB (Allied Irish Bank) respecting funds held by the Bank in the name of the deceased to satisfy objections delivered by John and Thomas A.
Order of DiTomaso J., dated August 14, 2018
[13] The parties came before me on August 14, 2018. Documentation had been received from the AIB and the objections of John and Thomas A. had been satisfactorily answered. John and Thomas A. further agreed that there were no further objections regarding the legal account (Feld Khalia account) and expenses associated with the deceased’s memorial plaque.
[14] What remained outstanding were the objections of John and Thomas A. that they, as beneficiaries, were owed the outstanding balance of their shares from the Estate. John, Thomas A. and Robert all consented and were ordered to prepare, serve and file summaries with supporting documents regarding their respective positions on the objections. The matter would return on a date to be arranged by the trial coordinator.
Order of Boswell J. dated October 16, 2018
[15] John and Thomas A. filed new and further objections. In turn, Robert brought a motion returnable October 16, 2018 to strike the new objections and for production of documents.
[16] Boswell J. heard the motion and noted my previous order, dated August 14, 2018. Although Thomas A. had filed his summary as ordered, Boswell J. had not seen John’s materials (John’s materials and Robert’s materials had been filed as well). Boswell J. endorsed that this matter needed to be “put to bed” as soon as possible and, to this end, he ordered the scheduling of the passing of accounts to proceed to a one-day oral hearing during the November 2018 civil trial sittings at Barrie.
[17] For the purposes of the hearing, Boswell J. identified the following and only the following live issues (emphasis his and mine):
(a) Whether Thomas A. is entitled to be compensated for $8,619.55 in alleged legal fees incurred in connection with the administration of this Estate; (b) Whether Thomas A. has been shortchanged on his share of the Estate by $3,571; (c) Whether John has been shortchanged by the sum of $5,559.86 for his share of the Estate; and, (d) The costs of this application.
[18] In addition to the above, Boswell J. ordered that the Objectors, John and Thomas A., each deliver forthwith a copy of their signed Indemnity Agreements to Robert, provided they had copies in their possession or control.
[19] He also ordered that Thomas A. forthwith produce to the Trustee,
(a) A copy of all materials filed with the Notice of Application to Pass Accounts in Brampton, filed # CV-15-420865; and, (b) A copy of the motion materials filed in support of the motion purportedly heard by André J. on October 5, 2016, together with a copy of the signed endorsement of André J. of the same date.
[20] Boswell J. fixed costs of the attendance before him in the amount of $1,000 against John and Thomas A., jointly and severally.
[21] He also ordered that Robert forthwith serve a copy of Boswell J.’s endorsement on the Objectors, which he did.
[22] As of the date of the hearing, Thomas A. did not produce the Brampton file materials that he was ordered to produce. Further, John and Thomas A. had not paid the costs in the amount of $1,000.
Order of Bird J., dated November 22, 2018
[23] The hearing was called in on short notice before Bird J. Although Robert and John attended, Thomas A. did not. Bird J. was not satisfied as to whether Thomas A. had been notified. She adjourned the matter to December 7, 2018 for a hearing in accordance with the endorsement of Boswell J. On December 7, 2018, the hearing of objections on the passing of accounts proceeded before me.
December 7, 2018 Hearing
[24] The hearing of objections took place on December 7, 2018. Viva voce evidence was heard from John, Thomas A. and Robert.
Objection of John Scarff
[25] John’s position was that his share of his father’s estate was the sum of $35,559.86, of which he had been paid the sum of $30,000. He claimed that the balance still owing was the sum of $5,559.86, which ought to have been paid to him by Robert, as the Executor and Trustee of the Estate.
[26] It was Robert’s position that the Estate did not owe any further monies to John. Rather, it was Robert’s position that he and John agreed to become partners in a restaurant business in Cambridge, Ontario. By trade, John has been a chef for many years and he continues in this line of work. Robert’s position was that the sum of $5,559.86 was contributed by John, together with other monies, towards the restaurant business venture. John denies that the balance of his share of the beneficiary funds would be contributed to the business venture with his brother.
[27] In cross-examination, John agreed that it was he who suggested the location of a building suitable for the operation of a restaurant in Cambridge. Although both approached the owner of the building, it was Robert who signed the lease. It was Robert who cut him out of the business and decided to run the business on his own.
[28] John testified that he had asked Robert many times for the payment of the balance of what was owed to him. However, there is nothing in writing to support these requests. John testified that all of the requests were verbal.
[29] John was cross-examined in respect of the restaurant business venture. He agreed that it was John who approached Robert with a draft formal agreement that referenced a commencement date of January 27, 2015. It was John who pulled this draft agreement off the internet. The draft agreement can be found in the Application to Pass Accounts. In the draft, item 6 refers to capital contribution. John’s capital contribution was to be $7,000. Robert’s capital contribution was to be $70,000. John denied that the notations in his draft were his handwriting. He had no idea whether the $7,000 figure came from. He agreed that the document was likely generated in January 2015 and presented to Robert in November or December 2015.
[30] John testified he and Robert went to an auction where John paid $100 for some sundry items for personal use.
[31] John testified that Robert refused to sign the agreement. Although John helped by working at the restaurant from time to time, he was never paid for his services. He denied purchasing any equipment for the restaurant. He paid one months’ rent when Robert was ill, but was never reimbursed. He testified that he was not part of any business partnership.
Evidence of Robert Scarff
[32] Robert testified that it was John who quit the restaurant business. It was John that came to him with a draft agreement. He testified that John wrote in the $7,000 figure from which $5,500 came from John’s outstanding share, with $2,000 already having been expended on the business.
[33] Robert testified that the subject of repayment of the $5,500 never came up until Thomas A. wanted a passing of accounts. When John learned that Thomas A. wanted to pass the accounts, this was the first time that he advanced his claim for alleged unpaid monies. There was evidence about John being “cut loose” from their involvement. Robert testified that this could only mean that John was being cut loose from his involvement in the restaurant business.
[34] Robert testified that John agreed that he would contribute the balance of what his beneficial share was in his father’s estate, together with other monies, as John’s contribution towards this restaurant business venture.
[35] Robert testified that in August/September 2014, John’s contribution to this restaurant business venture was made in the sum of $5,559.86. Although there is nothing in writing, Robert testified that this is what happened.
[36] Robert further testified that John was using his objection as an opportunity to recoup a business loss and not advance a legitimate claim to recover payment of the outstanding balance of John’s share as a beneficiary of his father’s estate.
[37] In cross-examination by John, Robert testified that he negotiated the lease with the owner and signed the lease. No copy of the lease was produced. Robert testified that John bought a vanity cabinet for the restaurant. They kept their own receipts in respect of what was purchased. He testified that they went together and bought all the tables and chairs for the restaurant. Robert was presented with a draft contract and testified that he never wrote anything on that document.
Findings
[38] I find that John has made a bald and unsubstantiated claim that he has not been paid and is still owed payment in the amount of $5,559.86 by his brother, Robert, as the Executor and Trustee of their father’s estate. I do not accept John’s evidence that he never agreed that Robert and he were business partners in a restaurant business in Cambridge. I do not accept that he never agreed that the sum of $5,559.86 was to be contributed as his investment in that business and the source of those monies would come from the outstanding balance owed to him from his father’s estate.
[39] Rather, I find that it was John who produced a draft contract entitled Partnership Agreement, which he obtained from the internet. The draft Partnership Agreement contains a term that the partnership would begin January 27, 2015. I accept the evidence of John that while the document was prepared in January 2015, it was likely presented to Robert in either November or December of 2015.
[40] Neither John nor Robert signed the agreement. Further, there is no document in writing which confirms the verbal agreement alleged by Robert and denied by John that John was a partner in the restaurant business and that his capital contribution would be in the amount of $7,000 as reflected in the draft agreement.
[41] I find that John and Robert were involved in opening a restaurant in Cambridge. The evidence supports Robert’s contention that he was to be the “frontman” (my expression). His name would be on the lease and other documents. John, with his extensive experience as a chef, would play a different but no less valuable role in the business operating the kitchen. Sadly, the brothers had a falling out, the restaurant opened but did not succeed and it subsequently closed.
[42] There is a difference of opinion between the brothers as to how and who quit the business. John maintains that Robert cut him out. Robert maintains that John simply voluntarily quit the business.
[43] Regardless, I accept Robert’s evidence that together, he and John were involved in the business start-up. John had available to him the sum of $5,559.86 as the balance of his share. I find that this amount was contributed by John towards the business start-up. The draft Partnership Agreement evidenced the intention of the parties to operate a restaurant business and what their relative contributions would be. Notwithstanding the fact that the written agreement was not signed, the conduct of the parties spoke to their intention to be involved in a proposed partnership in a restaurant business venture.
[44] I accept the evidence of Robert and John that they attended not only one but a number of auctions. At one auction, conducted by Benaco Sales Ltd., both John and Robert were bidders. The evidence supports that, on the occasion of that auction held on August 7, 2014, they acquired restaurant equipment for a total of $5,935.07. This was a single payment for an invoice in Robert’s name in the amount of $5,842.68 and an invoice in John’s name in the amount of $92.39. Robert paid for his bid card by a $200 debit. John paid for his bid card by $200 cash.
[45] I also accept the evidence of John and Robert that when Robert was ill, John paid one months’ rent but was never reimbursed. I accept John’s evidence that this money was not paid because of the business partnership, but rather he helped Robert out when Robert was ill. John has not been reimbursed for this payment.
[46] I find that the evidence of Robert and the documents filed supports that he and John were very much involved together in the start-up of the restaurant business. Their conduct in attending, certainly one auction and perhaps a couple more, according to the evidence and the draft Partnership Agreement produced by John for Robert’s consideration, confirms the intention of the parties and what their respective roles would be regarding this restaurant business.
[47] While there does not exist a specific document in writing, attesting to John’s consent regarding the contribution of whatever monies were yet owed to him out of his share of the Estate, I accept Robert’s evidence that John bought a vanity for a washroom at the restaurant. He used his own funds in this regard and purchased other items for which he kept his own receipts, none of which were produced.
[48] I also accept Robert’s evidence that John never demanded payment of any monies outstanding regarding his share of his father’s estate until Thomas A. brought his Application in Brampton to compel Robert to pass accounts. There is nothing in writing to support John’s claims that he, on numerous occasions, verbally demanded payment of his outstanding share. It is only much later, after Thomas A. delivered his objection that John delivered his as well. There is no evidence except for John’s bald assertion that monies were owed to him, no evidence supporting his claim that he had never agreed to use any of his funds from his father’s estate to contribute towards the start-up of the restaurant business. There is absolutely no correspondence between John and Robert where John seeks payment of all outstanding monies or denies any contribution towards the restaurant business. I find John’s claim comes very late in the day, only after the business was defunct and Thomas A. lodged his objection.
[49] As for the margin note found on the draft Partnership Agreement regarding capital contributions, this amount is very close to the amount claimed by John, together with rent which John had paid, in the amount of $1,250. Neither party was of assistance to the court as to who wrote the $7,000 figure. Both parties deny that it was them. Nevertheless, the $7,000 figure is more in accord and closer to the amount which Robert assert John contributed towards the start-up of the business.
[50] I find that John and Robert did enter into a business agreement to open a restaurant without a written contract. I accept that while John received the lion’s share of his estate benefit, he agreed verbally to allow Robert to use the remainder of what was owed to John for use in financing a portion of John’s final contribution to establish the business.
[51] Robert did use the balance of John’s entitlement as John’s contribution to further finance the business. There is no evidence to support that this was done without John’s knowledge.
[52] I accept that John voluntarily quit the business without a demand for the return of his investment. He complained to Robert about not being paid the outstanding balance of his share as a beneficiary of his father’s estate and made a demand for additional estate entitlements much later, approximately three years later. I find John’s conduct does not support his claim.
[53] For these reasons, I find that John’s objection has no merit and I would dismiss same. He is not entitled to be paid the sum of $5,559.86. He has not been shortchanged by Robert. In conclusion, the sum of $5,559.86 was John’s contribution to a failed restaurant business venture with his brother, Robert. He cannot claim now that he did not agree to contribute his money towards this business venture. His contribution is gone, as is the business.
[54] Accordingly, John Scarff’s objection to the passing of accounts is dismissed. He is not owed the sum of $5,559.86 claimed as his outstanding share of the Estate. He has received his entitlement of $30,000 which has been paid in full.
Objection of Thomas Aiden Scarff
[55] It is Thomas A.’s position that he signed an Indemnity Agreement where his total benefit amounted to $41,588.89. He did not receive this amount. Rather, he received the sum of $37,714. He maintains that he is owed the sum of $3,571, which is the amount deducted by Robert in order to arrive at a settlement with their other brother, Paul Scarff (Paul). While some of their other siblings may have accepted this adjustment, Thomas A. did not and seeks to be paid this amount.
[56] It is Robert’s position that this deduction or adjustment of $3,571 was applied equally to the accounts of all seven siblings in order to achieve a settlement with Paul. It is submitted that the settlement was fair and reasonable and the only one who refuses to accept this adjustment is Thomas A. Further, it is submitted that his consent was not required in the end to achieve final distribution. Robert submits that Thomas A. has been paid his share of the Estate and there are no monies owing to him. Further, Robert disputes that Thomas A. is owed the sum of $8,619.55 for legal fees. Thomas A. submits that these legal fees were expended because Robert would not speak to him, nor would Robert explain Estate matters to him. He was forced to obtain legal counsel because Robert refused to deal with him. By contrast, Robert submits that these legal fees are of Thomas A.’s own making. They are unnecessary and unreasonable. Robert submits that the claim for legal fees should also be dismissed.
Evidence of Thomas A. Scarff
[57] Thomas A. testified that he did not agree to an adjustment or a deduction of $3,571. He had signed an Indemnity Agreement for payment of $41,588.89. He received the sum of $37,714. He maintained that he was entitled to $3,571 that had been deducted or adjusted from his share. Further, he had incurred legal fees in the amount of $8,619.55. He was compelled to retain counsel to explain how he would get his inheritance. He required legal counsel in order to be advised as to what was going on, given the manner in which Robert was administering the Estate.
[58] Thomas A. was cross-examined about arriving at a settlement with Paul, involving the purchase of the Estate asset (the condominium) by Paul. From the beginning, Thomas A. had issues with the “sweet deal” that Paul was getting on the purchase of the condominium. He also disputed the undervaluation of the condominium, in order to simply dispose of this estate asset. He refused and did not agree with the adjustment or deduction of $3,571. From the outset, he and Robert were engaged in an acrimonious dispute over the sale of the condominium to Paul.
[59] Thomas A. was cross-examined about his participation at meetings with the beneficiary group. He agreed that the group was not opposed, but he only attended one meeting and no other meetings. Notwithstanding that there were a number of proposals resulting in Appendix 13 (Amended 3), he denied that he agreed to the last proposal where his share was in the amount of $37,714.86, as at October 21, 2014.
[60] Rather, he maintained in cross-examination that he had signed an Indemnity Agreement for a previous and larger amount, but Robert never honoured payment.
[61] Insofar as his legal costs were concerned, he was cross-examined about retaining a lawyer early and that the amounts related to the Brampton proceedings, then the Barrie proceedings and, in any event, the numbers were not correct.
[62] Thomas A. maintained that it was Robert who told him to retain a lawyer and it was Robert who was so difficult.
Evidence of Robert Scarff
[63] Robert testified that there were problems from the outset with Paul’s share and with Paul seeking to purchase the condominium. There were problems with the valuation and there were problems with the amount that Paul felt was fair. Paul complained and threatened to sue. Different proposals were advanced, which in the end, resulted in a formula agreeable to all beneficiaries except Thomas A., whereby the $3,571 adjustment was applied against all of their accounts.
[64] Robert testified as to how, in the end, each beneficiary’s share was in the amount of $39,245.73, and in accordance with Appendix 13 (Amended 3), Thomas A.’s share was $37,714.86. That number also reflected some other deductions as well as the adjustment of $3,571 to achieve the final settlement figure with Paul.
[65] As for the legal fees, from the outset, Thomas A. threatened to sue Robert. Thomas A. retained legal counsel from the very beginning, even prior to commencement of proceedings in Brampton. Robert testified that Thomas A. retained counsel to seek simple information and advice about the distribution payments and not about any court action. He testified that it was not necessary to incur these legal fees and any such fees ought to be borne by Thomas A. personally.
[66] Robert further testified that Thomas A. was uncooperative from the start. He did not attend beneficiary meetings and now he advances a claim for costs, legal expenses based on a scattered bunch of invoices which do not properly identify what legal services were incurred.
[67] In cross-examination, Robert denied that it was necessary for Thomas A. to retain legal counsel. He testified that adequate information was provided and that it was not necessary to drop everything whenever Thomas A. called him.
[68] Thomas A. cross-examined Robert about the administration of the Estate with which he took issue.
[69] In re-examination, Robert testified that it was Thomas A. who was the one who was threatening legal action from the beginning. He testified that Thomas A. has been paid his share in full. Further, Thomas A. is not in compliance with the order of Boswell J. He has failed to pay costs and has failed to submit the documents ordered.
Findings
[70] For the following reasons, I dismiss Thomas A.’s objection that he is entitled to the sum of $3,571.
[71] Notwithstanding the fact that he signed an Indemnity Agreement for a larger sum of money, his doing so preceded and did not take into account other proposals dealing with the settlement of Paul’s issues. A copy of the Indemnity Agreement was not produced by anyone.
[72] He attended one meeting of the beneficiary group and attended no other meeting. There were other meetings where the beneficiary group decided that certain steps would be taken in order to satisfy and settle the dispute with Paul. Those issues arose out of the valuation and proposed sale of the condominium to Paul.
[73] I am satisfied that Robert has provided a full explanation as to all of the events surrounding obtaining appraisals, the valuation of the condominium and the ultimate sale to Paul. I am satisfied that all of the dealings between the Scarff siblings and Robert as the Executor and Trustee of their father’s estate produced a resolution to Paul’s dispute, where he threatened to commence legal proceedings. This resolution involved an equal adjustment or deduction of the sum of $3,571 to each of the beneficiaries’ shares, which included Thomas A. I find that Robert, as Executor and Trustee, acted fairly and properly in this regard.
[74] Notwithstanding the fact that Thomas A. did not agree with this adjustment, I find that the adjustment was fair and reasonable in all the circumstances. In the end, it produced a result where each beneficiary’s share was in the amount of $39,245.73, but there would be different payouts in accordance with Appendix 13 (Amended 3) after a number of identified deductions were applied, including the $3,571 adjustment.
[75] Accordingly, I dismiss Thomas A.’s objection that he is entitled to the sum of $3,571 as payment of outstanding monies to which he claims entitlement. I find that he has been paid in full and that the Estate does not owe him this amount as claimed.
[76] As for the legal fees claimed in the amount of $8,619.55, I also dismiss this objection. I find that from the outset, Thomas A. opposed the manner in which his brother Robert administered the Estate. The texts from Thomas A. to Robert are in capitalized font and bold black type. I find the texts on Thomas A.’s part were threatening, demanding and uncooperative in nature.
[77] It was Thomas A. and not Robert from the outset who complained about not only the way the estate was being administered, but, in particular, the manner in which Robert and his siblings were dealing with Paul. However, Thomas A. was the only sibling who was opposed to how Robert, Paul and the other Scarff siblings had come to a resolution about Paul’s issue surrounding the purchase of the condominium property. For whatever reason, Thomas A. did not participate in the meetings involving the beneficiary group. If he had, he might have come to a better appreciation as to what was involved in arriving at a number of proposals, including the last proposal (Appendix 13 (Amended 3)), which sets out the ultimate payments to the various Scarff siblings as beneficiaries of their father’s estate.
[78] The legal bills provided by Thomas A. failed to identify what legal services were provided with any meaningful description. The invoices and bills from different law firms run from July 28, 2014 through to June, 2017. Not only do these invoices and bills fail to particularize what legal services were provided, but also the Duke firm account as claimed by Thomas A. is incorrect. Neither the copies of the various lawyers’ statements of account nor the viva voce evidence of Thomas A. support his claim for legal expenses. I find he must bear his own legal expenses.
[79] I am not satisfied that Thomas A. has proven his claim for legal expenses in the amount of $8,619.55. For these reasons, I would dismiss the objection advanced by Thomas A. regarding the payment of legal expenses in this amount.
Conclusion
[80] For these reasons, the Notices of Objection of John Scarff and Thomas Aiden Scarff are hereby dismissed.
[81] The parties agreed that costs can be dealt with by way of written submissions. John and Thomas A. shall each provide a summary not to exceed two pages in respect of costs, together with any supporting documents. They shall serve Robert and file those materials with my judicial assistant at Barrie within ten days of the date of this decision. Thereafter, Robert shall have ten days to submit his summary, not to exceed two pages, together with supporting documentation regarding costs. He shall serve same on John and Thomas A. and file those documents with my judicial assistant at Barrie. If necessary, John and Thomas A. shall have seven days to serve and file any reply material after Robert has delivered his responding materials.
Other Orders
[82] At the time of this hearing, John and Thomas A. had not paid the costs ordered by Boswell J. on October 16, 2018 in the amount of $1,000. I ordered that those costs were to be paid jointly and severally by John and Thomas A. within seven days of December 7, 2018, to Robert.
[83] Further, Thomas A. has failed to comply with the same Order of Boswell J. He has failed to forthwith produce to the trustee (i) a copy of all materials filed with the Notice of Application to Pass Accounts in Brampton, file CV-15-420865, and (ii) a copy of the motion materials filed in support of the motion purportedly heard by André J. on October 5, 2016, together with a copy of the signed endorsement of André J. of the same date.
[84] When I asked him about this, Thomas A. stated that he had not done so because he could not read Boswell J.’s handwriting. Robert responded that he had sent Thomas A. a copy of the endorsement, together with a transcription of same. Thomas A. also told me that he did not think he needed to do anything. I find both excuses unbelievable and unacceptable. I find that Thomas A. knew what he had to do and simply did not do it. Accordingly, he shall comply with the Order of Boswell J. and provide Robert with copies of the documentation set out in Boswell J.’s order within ten days of these Reasons.
[85] Finally, Robert had taken no steps to obtain for the Estate, the AIB funds. He was ordered and undertook to obtain those funds forthwith and to distribute those funds to the beneficiaries of the Estate.
[86] That being said, Robert shall take the necessary steps to amend the passing of accounts and thereafter obtain a new date from the trial coordinator on which to pass the accounts. That date is to take place after I have dealt with the issue of costs. The passing of accounts on the new date can be dealt with by any Justice of the Superior Court. I am not seized.
G.P. DiTomaso J. Released: December 21, 2018