COURT FILE NO.: CV-11-0528-00ES DATE: 20190318 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRUCE HOWARD BLAKE, KATHRYN JOAN HOMES, and PATRICIA RUTH GEDDES, Applicants AND: KENNETH GEORGE BLAKE and KENNETH GEORGE BLAKE, in his capacity as the Estate Trustee of the Estate of Ainslie Elizabeth Blake, Respondents

BEFORE: Regional Senior Justice Peter A. Daley

COUNSEL: Frederick E. Leitch, Q.C., for the Applicants, Bruce Howard Blake and Kathryn Joan Homes Edwin Upenieks, for the Applicant, Patricia Ruth Geddes Gregory Sidlofsky, for the Respondent, Kenneth George Blake, personally and as Estate Trustee

HEARD: September 19, 2018

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

INTRODUCTION:

[1] The respondent in his personal capacity and as estate trustee of the estate of his mother Ainslie Elizabeth Blake, deceased, moved for summary judgment, seeking to dismiss the claims of the applicants, his siblings, on several grounds.

[2] In his original Notice of Motion, the respondent raised two grounds for dismissal of the claims: the claims were statute barred or the claims were not maintainable as a result of the doctrine of res judicata. On the return of the summary judgment motion, the respondent moved to amend his Notice of Motion to add a third ground for the dismissal of the applicants’ claims, namely that the applicants’ claims with respect to certain real property in the state of Arizona in the United States of America did not raise a genuine issue that required a trial. Although counsel, on behalf of the applicants, initially opposed the amendment on the return of the motion, after counsel was provided with various options as to how to deal with the respondent’s motion, the motion for the amendment was granted on an unopposed basis.

[3] The central issue in the pending application and on the summary judgment motion related to nine properties in Arizona which had belonged to the parties’ mother, the deceased Ainslie Elizabeth Blake, and which the respondent included in a Plan he had prepared. That Plan, dated October 22, 2007, provided that all four of the Blake siblings with a right of refusal of designated properties.

[4] In 2007, the respondent conveyed title to six of the nine Arizona properties to himself, purportedly under the authority of a power of attorney granted by his mother, and US tax was paid by her on the declared prices as disclosed in her 2007 US tax return.

[5] For the reasons that follow, the respondent’s motion for summary judgment is dismissed.

BACKGROUND:

[6] In order to place my findings and reasons in context, a brief overview of the chronology of events, which generally is not an issue, is necessary:

• April 13, 2007 Last Will and Testament of Ainslie Blake is executed;
• October 22, 2007: Plan containing Rights of Refusal as prepared by the respondent is sent to all siblings;
• December 2007: six of the Arizona properties are conveyed to the respondent pursuant to the Power of Attorney from his mother;
• 2008-2009: respondent executes documentation on various dates gifting Arizona properties to himself pursuant to the Power of Attorney;
• December 29, 2009: Ainslie Elizabeth Blake dies;
• January 5, 2010: Application for Certificate of Appointment of Estate Trustee with will is granted;
• July 25, 2011: judgment on passing of accounts (1st Passing of accounts – unopposed);
• September 2011-April 2012: respondent demands full and final releases before making any interim distribution to the applicants;
• February 29, 2012: applicant Patricia Ruth Geddes institutes Application for a 2nd Passing of Accounts and interim disbursements and other relief;
• April 2012: respondent delivers 2nd set of estate accounts for a 2nd Passing of Accounts;
• June 2012: applicants each submit Notices of Objection to the 2nd set of accounts.

[7] As to the Plan distributed by the respondent, purportedly on behalf of his mother to his siblings by letter dated October 22, 2007, it provided for an auction process where one of the siblings would have an opportunity to bid on a property, failing which the opportunity would pass to another sibling and so on. The evidence is that none of the applicants responded to the Plan as distributed by the respondent, nor did they take any steps to acquire any of their mother’s properties. The letter outlining the Plan provided that the parties’ mother “reserved the right to make final distributions” of the properties.

[8] The nine Arizona properties were among the properties that the deceased owned or indirectly owned through a controlling share of a limited partnership, which were made up of eight retirement villas that were rented out and one two‑bedroom house.

[9] It is the evidence of the respondent on this motion that he wrote to the applicants, suggesting that they speak with their mother if they were considering commencing any legal proceedings against the estate in the future. The respondent has submitted on this motion a Brief of Answers to Undertakings of Kenneth George Blake, containing various emails sent to and received by him, some of which relate to the US properties.

[10] Notably, after the respondent had already gifted himself with six of the Arizona villas in December 2007, in an email of October 1, 2008, he wrote to the applicant, Ruth Geddes, relating to two of the villa properties and the house. The respondent stated: “If you choose not to acknowledge this email by October 3 that decision will be accepted as a refusal in the process [ sic ] [and I] will make an offer to the next individual. (Per the Property Transfer Agreement dated October 22, 2007, individuals not responding to offer emails may be eliminated from the process for offered property.)” This appears inconsistent with the respondent’s evidence that the auction process set out in the Plan of October 22, 2007, was never acted upon by the applicants and as such the purchase by auction process was no longer available to them.

[11] The applicant, Ruth Geddes, in cross-examination on her affidavit on this motion, testified that she did not view the October 22, 2007, letter (the Plan) as a contract. However, it is noteworthy that the respondent sent the email to her in October 2008, after having conveyed by gift to himself the Arizona villas, inquiring as to whether she wished to participate in the auction process provided for in the Plan of October 22, 2007.

[12] The applicant Bruce Blake testified that he assumed that the Plan was being implemented.

[13] On August 11, 2011, the respondent obtained a judgment passing his first set of accounts for the period ending October 31, 2010. The applicants were served with the Notice of the Application to Pass Accounts, and they further acknowledged that they did not ask the respondent any questions or object to the passing of accounts. The Arizona properties were not included in the materials submitted on the application for the 1st Passing of Accounts.

[14] In April 2012, the respondent served a 2nd Application for Passing of Accounts for the period ending February 29, 2012, following which the applicants served Notices of Objection. The Notices of Objection filed by the applicants on the 2nd Application for Passing of Accounts raised numerous allegations with respect to financial misconduct on the part of the respondent, including allegations of failure to account for monies under his management as the estate trustee, as well as with respect to fees he charged. Additionally, the applicants alleged that the respondent failed to provide disclosure with respect to the transfer of the Arizona properties to himself. The respondent filed Responses to Notices of Objection.

ANALYSIS:

[15] The Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras. 49-50, 66, states that on a motion for summary judgment, the court must determine whether summary judgment can provide a fair and just adjudication. That will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result.

[16] If it is determined that there appears to be a genuine issue requiring a trial, based only on the record submitted, the judge should then determine if a trial can be avoided by using the powers provided under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The judge may use those powers so long as their use is not against the interests of justice: Hryniak, at para. 66.

[17] In an appeal from a motion for summary judgment in Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44, Nordheimer J.A., in considering the use of summary judgment motions rather than the trial process, stated:

[N]othing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication:” Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.

[18] The respondent bears the onus of showing that there is no genuine issue requiring a trial. Once he has satisfied that burden, the applicants, as the responding parties, have an evidentiary burden to respond with evidence setting out specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26. Before granting summary judgment, it must be apparent to the court that a trial would serve no juridical purpose and that it is proper to deprive a party of its right to trial.

[19] Parties must put their “best foot forward” on a motion for summary judgment, and the court will assume that the parties have placed before it, in some form, all the evidence that will be available for trial. Even if the evidence available on the motion is limited, there may be no reason to think that better evidence would be available at trial: Sweda, at paras. 26-27, 32-33, 203.

[20] The moving respondent’s position must be considered within this judicial framework.

I RES JUDICATA:

[21] It is urged on behalf of the respondent that there is no genuine issue requiring the trial as the judgment granted on an unopposed basis on the 1st Passing of Accounts of July 25, 2011, is res judicata. As such, the Applicant’s Notices of Objection on the 2nd Passing of Accounts as constituted cannot proceed given the court’s previous determinations.

[22] In the decision of Re Estate of Assunta Marino, 2010 ONSC 5237, 100 C.P.C. (6th) 232, at paras. 21-22, the court held that where a beneficiary of an estate fails to file a notice of objection to accounts within the time prescribed and moves to set aside an unopposed judgment passing accounts, the principles that govern motions to set aside a default judgment apply. Those principles are: (1) whether the motion was brought without delay after the defendant learned of the default judgment; (2) whether the circumstances giving rise to the default were adequately explained; and (3) whether the defendant has an arguable defence on the merits. It was also held that the court should consider whether the interests of justice favor setting aside the judgment on the passing of accounts.

[23] In setting aside the judgment on the passing of accounts, Brown J. (as he was) reasoned that the court should require a fiduciary to account for his activities and that the arguable objections from the beneficiary should be considered: at paras. 30, 38. The court held that “the dismissal of the motion would deprive a beneficiary of a formal opportunity to require a fiduciary to account for his dealings with the property under his control and direction” and that requiring a fiduciary to account for his dealings “can hardly be considered a prejudice to the fiduciary who labours under a legal duty to so account”: at paras. 38-39.

[24] Having regard to the respondent’s position that the conveyance of title to the Arizona properties to him by way of power of attorney were inter vivos gifts, outside the estate assets, the Court Of Appeal in its decision in Turk v. Turk, [1957] O.R. 482 (C.A.), at para. 29, considered such inter vivos gifts to estate trustees and stated that such trustees must meet an onus of proving that “the alleged gifts were intended for them and that the transactions were the free act of the testator and were entered into by the testator willingly and deliberately on his part and without pressure or influence by the defendants or any of them as recipients of the alleged gifts”. The court further stated at para. 31:

[A]s executors and trustees of their father’s last will and testament, the defendants as recipients of the alleged gifts inter vivos from the testator, if the gifts had been obtained honestly, would have given a full account of the transaction and the circumstances under which the gifts were made to their sisters soon after the gifts were made so that the sisters could make any investigation they felt entitled to make at the time[.]

[25] The respondent’s position on this record is that the transfers of the Arizona properties to him were inter vivos gifts, and as such, he must meet the onus of proving and establishing that the gifts were intended for him, that the transactions were the free act of his mother, and that she entered into those conveyancing transactions willingly, deliberately, and without any pressure or influence by the respondent.

[26] The respondent has not adduced any evidence demonstrating that the inter vivos gifts were made by his mother willingly, deliberately, and without any pressure or influence by him. The fact that these conveyances were done by the respondent himself purportedly pursuant to a power of attorney granted by his mother certainly raises serious suspicions as to the circumstances of the so-called inter vivos gifts and as such the respondent should be made to account for the properties: The Estate of Assunta Marino, supra, at paras. 23-24.

[27] It is asserted by the respondent that the judgment of July 25, 2011, on the 1st Passing of Accounts is res judicata so as to bar the applicants from litigating the causes and complaints raised in the Notices of Objection filed on the 2nd Passing of Accounts.

[28] Contrary to the submissions made on behalf of the respondent, the jurisprudence provides that a passing of accounts may appear to administratively end the executors’ involvement in the affairs of the estate, but there is no statutory provision or judicial finding to that effect. In the Ontario Court Of Appeal decision of Leonard and Hall v. Crown Trust & Guarantee Company, [1949] O.R. 678 (C.A.), the court only concluded that a Surrogate Court’s order on a passing of accounts constituted res judicata on the issue of whether certain expenses should have been paid from income or from capital by the executor: Barkin v. Royal Trust Co. (2002), 45 E.T.R. (2d) 1 (Ont. S.C.), at para. 13.

[29] Pitt J. further noted in Barkin, at para. 13, that:

[Leonard and Hall] does not stand for much more than the proposition that issues that are resolved, and presumably should have been resolved on the passing of accounts, ought not to be entertained subsequently. I would not expect that doctrine to include matters of importance that could not have been known through the exercise of reasonable diligence nor perhaps necessarily even matters of importance that simply were not known.

[30] The matters raised in the pending application were not matters considered or before the court on the 1st Passing of Accounts application, and, as such, the court retained jurisdiction to deal with matters not dealt with in the original order. This is the case even though the trustee’s accounts were passed on notice and the court determined how payments from the estate should be made: Re Karson Estate, [1953] O.W.N. 403 (C.A.).

[31] Furthermore, the 1st Passing of Accounts did not finally determine the applicants’ rights, as this was an interim passing only. It was in the 2nd Passing of Accounts where the respondent first indicated that he did not intend on crediting the applicants with the value of the Arizona properties as part of his share of the estate upon ultimate distribution.

[32] I therefore conclude that the court’s determination by judgment in the 1st Passing of Accounts does not bar the applicants by res judicata from proceeding with the pending application and the Notices of Objection filed.

[33] I have further noted that the moving respondent has not indicated whether he is relying upon cause of action estoppel or issue estoppel in asserting the defence of res judicata; however, regardless of that issue, I have concluded that the defence of res judicata is not available with regard to the issues raised in the Notices of Objection filed on the 2nd Passing of Accounts, as those matters were not determined by the court in the 1st Passing of Accounts judgment and thus must be adjudicated by the court on the 2nd Passing of Accounts.

II LIMITATION PERIOD:

[34] It is urged on behalf of the respondent that the applicants’ claims as articulated in their Notices of Objection filed in the 2nd Passing of Accounts and relating to the Arizona properties conveyed to the respondent are statute barred under the Trustee Act, RSO 1990, c. T.23. This argument is specifically raised on the basis that no claims were asserted by the applicants within two years of the deceased’s death that the so-called inter vivos gifts of the real property to the respondent were invalid because of the exercise of undue influence or lack of capacity on the part of the grantor.

[35] It is the respondent’s position that the time within which the applicants could have asserted a claim with respect to the Arizona properties commenced on the date of death of Ainslie Elizabeth Blake, namely on December 29, 2009, and that the first notice of a claim by the applicants was in their Notices of Objection in June 2012, more than two years and five months after her death.

[36] Counsel for the applicants refers to the Court of Appeal decision in Armitage v. The Salvation Army, 2016 ONCA 971, 406 D.L.R. (4th) 563, and the reasons of Hourigan J.A. for the court, where he states that applications for the passing of accounts under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), are not subject to the two-year limitation period provided for in the Limitations Act, 2002, as such an application does not constitute a “claim” governed by that Act: at para. 19.

[37] The question which was not directly addressed in Armitage is whether or not a “claim” asserted within an application to pass or compel the passing of accounts by way of Notice of Objection is subject to the Limitations Act, 2002.

[38] Subsequent to counsel’s submissions on this summary judgment motion, the decision of Mulligan J. in Wall v. Shaw, 2018 ONSC 1735, 20 C.P.C. (8th) 100, aff’d 2018 ONCA 929 (Div. Ct.), released on March 14, 2018, came to my attention.

[39] It is both unfortunate and troubling that counsel did not refer to this decision during their submissions, as the decision of the court at first instance and the decision of the Court Of Appeal sitting as the Divisional Court, clearly put to rest any controversy or doubt as to whether a notice of objection is subject to the provisions of the Limitations Act, 2002.

[40] As to the two-year limitation period in s. 38(3) of the Trustee Act, I have concluded that this limitation period has no application to this case. Firstly, that section deals with claims being brought against an executor or administrator, as the representative of the estate of a deceased, who is alleged to have committed a tort or wrong during their lifetime. It does not relate to actions brought against an executor or administrator in respect of torts or wrongs committed by them while acting in their capacity as an executor or administrator of an estate.

[41] Furthermore, even if the limitation period in the Trustee Act was engaged here, for the reasons expressed by the court in Wall v. Shaw as discussed below, a notice of objection in a passing of accounts application is not a claim or an action and as such the limitation period in s. 38(3) of the Trustee Act would have no application in this case in any event.

[42] In this decision, Mulligan J. considered whether or not a notice of objection was a “claim” subject to the provisions of the Limitations Act, 2002. In his reasons, at paras. 25-26, 30-31, he referenced the decision of Hourigan J.A. in Armitage and, in particular, the footnote at para. 29 of Armitage, which reads:

I do not mean to categorically provide that the Limitations Act, 2002 has no applicability to the passing of accounts process under the SDA. In particular, it may be that the filing by a beneficiary of a notice of objection after an attorney has sought a passing of accounts is a claim within the meaning of the Limitations Act, 2002. However I leave this determination to another case where it arises directly on the facts.

[43] Although Mulligan J. acknowledged that the jurisprudence as to whether or not a notice of objection was a claim within the context of the Limitations Act, 2002, was somewhat unclear, as it was not directly considered by the Court of Appeal in the Armitage decision, he nevertheless found that given Hourigan J.A.’s conclusion that the passing of accounts does not constitute a claim, a notice of objection was also not a claim. In the result, he dismissed the trustee’s motion to strike a notice of objection filed by a beneficiary on the basis that it was served and filed out of time under the Limitations Act, 2002.

[44] On the appeal to the Court of Appeal, sitting as the Divisional Court, Brown J.A. dismissed the estate trustee’s appeal from the decision of Mulligan J.

[45] Before considering the applicability of the Limitations Act, 2002, Brown J.A. examined the provisions of the Estates Act, R.S.O. 1990, c. E.21, and in particular s. 49. He stated as follows at para. 24:

Section 49(2) of the Estates Act empowers a judge on a passing of accounts by an estate trustee, “to enter into and make full inquiry and accounting of and concerning the whole property that the deceased was possessed of or entitled to, and its administration and disbursement.” Sections 49(3) and (4) further describe the procedure and judge’s powers on an estate trustee’s passing of accounts:

(3) The judge, on passing any accounts under this section, has power to inquire into any complaint or claim by any person interested in the taking of the accounts of misconduct, neglect, or default on the part of the executor, administrator or trustee occasioning financial loss to the estate or trust fund, and the judge, on proof of such claim, may order the executor, administrator or trustee, to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate or trust fund, but any order made under this subsection is subject to appeal.

(4) The judge may order the trial of an issue of any complaint or claim under subsection (3), and in such case the judge shall make all necessary directions as to pleadings, production of documents, discovery and otherwise in connection with the issue. [emphasis added.]

[46] At paras. 29-34 of Wall, Brown J.A. thoroughly reviews the nature of a notice of objection within the context of both the Estates Act and the Limitations Act, 2002, where he states as follows, at paras. 29-34, 37:

Section 4 of the Limitations Act states: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered” (emphasis added). A notice of objection to accounts does not commence a proceeding.

Section 49 of the Estates Act and rr. 74.17 and 74.18 of the Rules of Civil Procedure create a passing of accounts procedure in which the estate trustee, not a beneficiary, is the applicant who commences the proceeding. Section 4 of the Limitations Act does not limit the ability of a person to respond to or participate in a proceeding commenced by another. That is what happens when a beneficiary files a notice of objection to accounts. She responds to a proceeding already initiated by the estate trustee.

Mr. Shaw submits that although a beneficiary may respond to an existing proceeding by her notice of objection, that response is essentially a counterclaim and therefore commences a proceeding. Furrow and Zacks advance a variant of this argument in their article, “The Limitation of Applications to Pass Accounts”. In their view, “[i]ssuing a notice of application commenced the proceeding on some earlier date; filing the notice of objection commenced the proceeding in respect of a claim”: at p. 248.

I am not persuaded by this argument, which founders on the language of s. 1.03 of the Rules of Civil Procedure. As the Limitations Act does not define the term “proceeding”, this court usually takes guidance from the definitions found in the Rules of Civil Procedure: Giglio v. Peters, 2009 ONCA 681, 99 O.R. (3d) 129, at para. 21. It is significant that the definitions of “proceeding”, and its constituent terms “action” and “application” in r. 1.03 of the Rules of Civil Procedure, do not include a r. 74.18(7) notice of objection. By contrast, a counterclaim falls within the definition of an “action” in r. 1.03 and, thus, within the definition of “proceeding”. Nor does a notice of objection fall within the definition of “originating process”, the document whose issuance commences a proceeding.

B. Is a Notice of Objection to Accounts a “claim” within the meaning of s. 4 of the Limitations Act?

As a notice of objection does not commence a proceeding within the meaning of s. 4 of the Limitations Act, strictly speaking it is not necessary to determine whether a notice of objection is a “claim” to which s. 4 would otherwise apply. However, because Mr. Shaw takes issue with the motion judge’s application of this court’s decision in Armitage to resolve that question, I will address it briefly.

Section 4 of the Limitations Act bars the commencement of a proceeding in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 1 of that Act defines “claim” to mean “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.

There is force to the argument that if the estate trustee’s initial application to pass accounts is not a “claim” within the meaning of the Limitations Act, then neither is a responding objection made by the beneficiary within that proceeding.

[47] It is noteworthy that counsel for the moving respondent did not expressly rely upon the provisions of the Limitations Act, 2002, in his factum, but rather on the limitation period provided for in ss. 38(2) and (3) of the Trustee Act, R.S.O. 1990, c. T.23, which reads as follows:

(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

[48] However, during his submissions, he did urge that the applicants’ Notices of Objection were also subject to the two-year limitation period in s. 4 of the Limitations Act, 2002. Thus, it was left somewhat unclear as to which limitation period was being relied on by the respondent.

[49] In my view, given the Divisional Court’s decision in Wall, and in particular the conclusion that a notice of objection filed under r. 74.18(7) is not included in r. 1.03 of the Rules of Civil Procedure, where a “proceeding” is stated to mean “an action or application”, a notice of objection is not an “action” as referred to in s. 38(3) of the Trustee Act and, as such, the limitation period in question has no application to a notice of objection.

[50] I have therefore concluded that the applicants’ Notices of Objection are not out of time under either the Limitations Act, 2002, or the Trustee Act, and as such, there is no limitation period defence available to the respondent.

III NO GENUINE ISSUE REQUIRING A TRIAL:

[51] The respondent relied upon two principle grounds on his summary judgment motion calling for the dismissal of the application, namely that the applicants’ claims are barred by the equitable doctrine of res judicata and that they are statute barred. Additionally, counsel for the respondent puts forward general arguments that are based on the evidence from the cross-examinations of the applicants Patricia Ruth Geddes and Bruce Howard Blake on their affidavits filed in response to this motion.

[52] The cross-examination evidence relied upon by the respondent largely relates to the real property that was acquired by the respondent as gifts conveyed to him via his power of attorney on behalf of his mother. It is asserted by counsel for the respondent that the applicants’ claims with respect to the Arizona properties constitute an attempt to attack the inter vivos gifts of these properties.

[53] I disagree with the assertion on behalf of the respondent. The applicants are not seeking to set aside the conveyances of the Arizona properties to the respondent.

[54] As noted above in Wall, at para. 24, the court referred to s. 49(2) of the Estates Act and how it empowers a judge on the passing of accounts by an estate trustee “to enter into and make a full inquiry and accounting of and concerning the whole property that the deceased was possessed of or entitled to, and its administration and disbursement.” Furthermore, as referenced above at para. 24 of Wall, s. 49(3), in describing the procedure and the powers of a judge on the passing of an estate trustee’s accounts, states:

The judge … has power to inquire into any complaint or claim by any person interested in the taking of the accounts of misconduct, neglect or default on the part of the executor, administrator or trustee occasioning financial loss to the estate or trust fund, and the judge, on proof of such claim, may order the executor, administrator or trustee, to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate or trust fund, but an order made under this subsection is subject to appeal.

[55] In my view, the complaints asserted by the applicants in their Notices of Objection are clearly the types of claims or complaints that fall within the scope of s. 49 of the Estates Act and, as such, the evidence from the applicants’ cross‑examinations, relied upon by the respondent, does not in any way support his contention that there is no genuine issue requiring a trial in respect of any of the matters raised in the Notices of Objection.

CONCLUSION:

[56] As the foundations for the respondent's summary judgment motion have been rejected for the reasons set out, I have concluded that the respondent has not adduced evidence demonstrating that there is no genuine issue requiring a trial.

[57] The conduct of the respondent, as the estate trustee and the purported grantee of inter vivos gifts of property by his mother, gives rise to numerous factual and legal questions that cannot be properly determined on this record, so as to deprive the applicants of a full and proper adjudication of their objections to the respondent's conduct on a complete evidentiary record. This is especially so given that the respondent has failed to comply with his duties to account, as estate trustee, in several respects, most notably resulting from his failure to account as to the inter vivos gifts on the terms as articulated in the Turk decision.

[58] For these reasons I have determined that the respondent’s motion for summary judgment must be dismissed.

[59] Having concluded that the summary judgment motion must be dismissed, I have also determined that it is necessary to give directions and impose terms with respect to the conduct of the application as provided for in r. 20.05(2). As there has been some disclosure, although perhaps not full disclosure of relevant documents, and as there have been cross-examinations on affidavit materials, there may remain several scheduling matters that must be addressed. As such, counsel shall appear before me to make submissions with respect to the imposition of a timeline for the completion of any remaining steps in order to prepare this matter for trial. Counsel shall each file a proposed litigation timeline 7 days in advance of their attendance. My administrative assistant will contact counsel to offer dates for such an attendance.

[60] With respect to the costs of this application, counsel shall file submissions of no longer than 3 pages, along with a costs outline, within 20 days from the date of release of these reasons. No reply submissions are to be delivered.

Daley RSJ. Date: March 18, 2019