Court File and Parties
COURT FILE NO.: CV-18-77954 DATE: 2019/07/26
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HUME TRADING COMPANY LIMITED Applicant – and – THE ESTATE OF LEONA ROUGIER Respondent
COUNSEL: Andrew Lenz, for the Applicant No one appearing for the Respondent Estate
HEARD: January 22, 2019 (at Ottawa)
Endorsement
corthorn j.
Introduction
1The applicant corporation’s business is the sale and repair of trailers and motor homes. The business has, for decades, operated on property located on Bank Street, south of Leitrim Road, in the City of Ottawa (“the Property”). This application addresses various issues with respect to title to the Property.
Background
2Kim Hume is the Vice-President of Operations of the applicant corporation (“HTCL”). In 1978, Mr. Hume personally entered into an agreement to purchase property from Maurice Ladouceur (“the Ladouceur Property”). Mr. Hume believed that the Ladouceur Property comprised Parts 1-4 of property described as PT LT 23 CON 5RF. The transaction closed and, since that time, Mr. Hume and/or Hume Goldwyn 1 have been receiving (and paying) property tax bills from the City of Gloucester for Part 1-4.
3Members of the Hume family and HTCL have occupied Parts1-4 since 1978. Mr. Hume describes their occupation of Parts 1-4 as, “actual, open, continuous, exclusive and undisturbed for over 40 years.”
a) Title to Parts 1-4
4It was not until 2006 that HTCL discovered that the title conveyed to Mr. Hume in 1978, when he purchased the Ladouceur Property, included only Parts 1 and 3 of PT LT 23 CON 5RF. That discovery was made during a title search conducted when HTCL and/or a member of the Hume family purchased property from the owner of an adjacent parcel of land (“the Kralik Property”). The title to Parts 2 and 4 of PT LT 23 CON 5RF (“the Rougier Property”) remained then, as it does now, registered in Leona Rougier’s name.
5Mr. Hume’s evidence is that, in 1978, he discussed the purchase of the Ladouceur Property with his father (“Mr. Hume, Sr.”). Mr. Hume did so, in part, because it was his intention to convey title to the Ladouceur Property to HTCL at a later date. Mr. Hume’s evidence is that both he and his father believed Mr. Hume had purchased two acres of property from Mr. Ladouceur (i.e., all of Parts 1-4).
6Mr. Hume, Sr. is alive and residing in a long-term care facility in the Ottawa area. His health is such that he is not capable of assisting with this matter.
7In support of the application, HTCL relies on the September 2018 affidavit of Mr. Hume (the “Hume Affidavit”). The exhibits to that affidavit include a copy of a Plan of Survey for Part of Lot 23 Concession 5 RF. The Schedule to the Plan lists the size of Parts 1-4, respectively:
Part 1 1.218 acres Part 2 0.878 acres Part 3 1,749.24 sq. ft. Part 4 1,434.06 sq. ft.
8Mr. Hume’s evidence is that he conveyed the title to the Ladouceur Property to HTCL. There is, however, no evidence as to when that conveyance occurred. None of the documents with respect to the conveyance of the Ladouceur Property from Mr. Hume to HTCL is included in the record.
9Who purchased the Kralik Property in 2006 is unclear: Mr. Hume, and/or another member of the Hume family, and/or HTCL. Mr. Hume describes the Kralik Property as “land we were purchasing from Ms. Kralik”. The “we”, to whom Mr. Hume refers, is not identified by name in the record.
10It was Mr. Hume’s intention, as of the closing of the purchase of the Kralik Property, to take the steps necessary to have title to the Rougier Property conveyed to HTCL.
11In the years since the purchase of the Kralik Property (a) Mr. Hume was busy with the operation of HTCL, and (b) the Hume family and HTCL enjoyed undisturbed occupation of Parts 1-4. As a result, taking the steps necessary to obtain relief with respect to title to the Rougier Property remained low on Mr. Hume’s list of priorities.
b) The Right of Way
12In 2018, HTCL entered into an agreement to convey a portion of the Property (“the Montessori Property”) to its long-time tenant—the operator of a Montessori school. HTCL obtained the consent of the City of Ottawa to the severance of the Montessori Property.
13The City’s consent to the severance was conditional upon HTCL conveying to the City a five-metre wide strip of land on the east side of Bank Street. The City requires that strip for possible road-widening in the future.
14When steps were taken to (a) transfer title to the strip of land from HTCL to the City, and (b) close the sale of property from HTCL to the operator of the Montessori school, another issue with respect to title to the Property was discovered. A small portion of the Property (20 square metres in size) is subject to a right of way in favour of the Rougier Property.
15To facilitate the closing of the sale of the Montessori Property, HTCL gave an undertaking to the City to bring an application for relief related to the right of way. Mr. Hume decided that HTCL would, at the same time, seek relief related to title to the Rougier Property.
16On this application, HTCL seeks relief with respect to (a) title to the Rougier Property, and (b) the undertaking given to the City to obtain a partial discharge of the right of way in favour of the Rougier Property.
c) The Relatives of Leona Rougier
17Beginning in 2012, Mr. Hume attempted to contact individuals whom he believed might be relatives of the late Leona Rougier. His efforts in that regard were to no avail. More recently, with the assistance of HTCL’s real estate lawyer (Mr. St-Onge), a granddaughter of Leona Rougier—Barbara Parker—was identified and located.
18Communication with Ms. Parker commenced in August 2018. Mr. Hume’s evidence is that Mr. St-Onge spoke with Ms. Parker at that time. According to Mr. Hume, the information obtained by Mr. St-Onge from Ms. Parker includes:
- She is a retired high school teacher living in the Sudbury area. She is the daughter of Adolf Rougier—Leona Rougier’s oldest son;
- Leona Rougier was pre-deceased by her husband. All of Leona’s children are deceased;
- Ms. Parker recalls visiting the Rougier Property as a child when the property was used as a farm; and
- Ms. Parker has some familiarity with the Hume family and their business.
19There is an evidentiary issue with the affidavit evidence filed in support of the application. Sub-rule 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the requirements for evidence on an application. It provides that, “An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”
20The information set out in the bullet points listed above is not contentious. That portion of Mr. Hume’s affidavit does not, however, comply with r. 39.01(5). First, nowhere in his affidavit does Mr. Hume express his belief that the information provided to him by Mr. St-Onge is true.
21Second, the information from Ms. Parker is not first-hand to Mr. Hume. Mr. St-Onge spoke with Ms. Parker. He is the individual in a position to provide evidence, on information and belief, based on the telephone conversation with Ms. Parker.
22The Hume Affidavit also addresses the more substantive aspects of the 2018 telephone conversation between Mr. St-Onge and Ms. Parker. Mr. Hume says, “[Ms. Parker] was not aware that registered title to a portion of the property formerly owned by her grandmother was still registered in her grandmother’s name and made no suggestion that her family retained any interest in any land in this area.” That part of Mr. Hume’s evidence also falls short of the evidentiary requirements on an application.
23In December 2018, counsel for the applicant (Mr. Lenz) spoke by telephone with the Ottawa-based lawyer retained by Ms. Parker (Matthew Smith). Mr. Smith followed up that conversation in a letter dated January 4, 2019, addressed to Mr. Lenz. That letter is included as an exhibit to the first of two affidavits sworn by Danielle Marshall. She is an assistant in the office of the lawyers of record for HTCL.
24In his January 4 letter, Mr. Smith informs Mr. Lenz that, “Ms. Parker does not oppose the relief being sought on the application.” Mr. Smith says that he received from Ms. Parker the names and email addresses, the latter where available, of Leona Rougier’s surviving grandchildren. He states, “As promised, we have reproduced the names and contact information below.” That statement is followed by a chart in which the names of 19 individuals are listed. Email addresses are provided for 15 of the 19 individuals.
25Mr. Smith expresses his opinion about the notice the grandchildren of Leona Rougier should be given of the application. He says, “To the extent that these individuals take an interest in the Rougier Property, they should be given an opportunity to review your client’s application record and to respond in their personal capacity or in their capacity as a representative of the Estate.”
26In response, on January 8, 2019, Mr. Lenz sent a letter (by email) to Mr. Smith. One of the matters addressed in Mr. Lenz’s letter is the list of names and contact information for the grandchildren:
Last Friday I received your letter. I wish to make it clear that:
- You did not promise to provide us with the coordinates of your client’s relations nor did we ask for them;
- We had no insight as to the existence or identity of these persons before we got your letter;
- Having said that, Mr. St. Onge [and] I expect to receive instructions to send a letter by email to the individuals set out in your letter as much as possible. If they wish to make submissions to the court on January 22 I suppose the Court can entertain that request; and,
- I cannot promise that I will not serve materials on your client or that she will have no further involvement. I can commit to trying to inconvenience Ms. Parker as much as possible.
27In his letter, Mr. Lenz requests that Mr. Smith review a draft order and advise if the contents of the draft order cause Ms. Parker to change her position on the application. Mr. Lenz says, “I will then make this letter an attachment to the Supplementary Affidavit for the purpose of our Application and, on January 22, I will advise the Court effectively that there is no opposition to the Application.”
28Also on January 8, 2019, Mr. Lenz sent an email to the 15 grandchildren of Leona Rougier for whom their respective email addresses had been provided (“the Email”). A copy of the Email is attached as an exhibit to Ms. Marshall’s first affidavit.
29That exhibit does not include any transmission confirmation forms. If either the “Delivery Receipt” or “Read Receipt” options were used when the Email was sent, no evidence of their use is before the court. As a result, other than the limited responses to the Email, there is no evidence as to which of the grandchildren received it.
30The Email includes background information to and identifies the January 22, 2019, return date for the application. Copies of the notice of application and the Hume Affidavit are attached to the Email. A copy of the factum filed on behalf of HTCL is not attached to the email.
31In the Email, Mr. Lenz informs the grandchildren as follows:
We are the solicitors for the Hume Trading Company Limited (“Hume”). You have been identified to us by Barbara Parker as someone who might be a relation of the late Leona Rougier of the City of Ottawa.
Our client believes that it purchased real property in the 1970’s which should have included certain property remaining registered in the name of Leona Rougier. The circumstances relating to our client’s claim are set out in the attached affidavit of Kim Hume. The precise relief sought is set out in the Notice of Application.
After much effort we were able to identify Barbara Parker as a grandchild of Ms. Rougier. Ms. Parker is not opposing the relief we seek and has indicated that she does not wish to be involved further. She has also indicated that you might be a relation of Ms. Rougier. Ms. Rougier’s [sic] solicitor, Mr. Smith is copied on this message.
Our application will be heard in Ottawa on January 22. If you have any wish to make any submissions to the court on that day, please contact me in advance and let me know.
32When the application was returned before the court on January 22, 2019, there was no evidence as to the responses, if any, received from the grandchildren. The court requested that evidence of the responses received be filed. A second affidavit from Ms. Marshall was filed approximately one week following the return of the application.
33There is no evidence that copies of Ms. Marshall’s two affidavits have been provided to any of the grandchildren of Leona Rougier or to Mr. Smith in his capacity as counsel for Barbara Parker.
34In her second affidavit, Ms. Marshall states that Mr. Smith did not inform counsel for the applicant of any changes to Ms. Parker’s position.
35In the same affidavit, Ms. Marshall addresses email responses received by Mr. Lenz from four of the grandchildren to whom the Email was sent. In summary, the responses received in January 2019 were:
On January 8, Patricia Rougier acknowledged receipt of the Email. She followed up by email on January 15, providing a family history with respect to the Estate of Leona Rougier, Ms. Rougier’s eldest child (Alma Bonner), and Ms. Rougier’s second-oldest child, Alice Rougier. The contents of Patricia Rougier’s email are not evidence in that regard.
Patricia Rougier concludes her response with the following:
If there is a judgment in favour of the Rougier estate, I expect that this property has already changed owners through estates even though it was not specifically mentioned, and would belong to whomever was the last beneficiary of their collective possessions [sic] the rightful owner. Please bring this to the courts attention.
On January 8, Dr. Michael G. Rocheleau responded by email. He identifies himself as a physician living in Victoria, B.C. He states that he will contact his brother, Robert, who is an architect also living in B.C., to discuss the matter.
On January 13, Robert Rocheleau sent an email to Mr. Lenz. Mr. Rocheleau says:
Thank you for the notification. As you are no doubt aware, this is short notice to organize a submission to the Court on January 22.
I suggest that myself and other descendants of Leona Rougier would be more than willing to cooperate with the Hume’s to reach a fair and reasonable agreement pertaining to this issue.
How do you see this being facilitated?
On January 21, Joanne Rougier responded by email. She states that she worked as a real estate agent in Ottawa until 2012—presumably to indicate that she could have been located at a much earlier date. She questions the contents of the application record—indicating that it lacks a copy of “a bill of sale” for the property. She concludes her email by stating, “If you wish for my relief of title for the property, I would accept an out of court payment of $5000.”
36Mr. Lenz responded to Joanne Rougier by email on January 21, 2019, stating, “I have your message. If you wish to contest the application I suggest you attend tomorrow and ask to be appointed by the court to represent the estate. I expect that you will need to retain a lawyer. If that is your intention please advise by the close of business today.”
37Ms. Marshall’s evidence is that, as of January 28, 2019, when her second affidavit was sworn, Mr. Lenz had not received a response to his January 21 email to Joanne Rougier.
38In his January 13, 2019 email, Mr. Rocheleau suggests that counsel for the applicant have a telephone conversation with him. That conversation took place on January 16, 2019. In her second affidavit, Ms. Marshall provides evidence as to the substance of that conversation. She describes the conversation as including Mr. Rocheleau, Mr. Lenz, and Mr. St-Onge.
39There is no evidence that Ms. Marshall was present during the telephone conversation. Ms. Marshall’s evidence about the conversation is based on information provided to her by Mr. Lenz. Ms. Marshall attests to her belief that the information provided is true. To that extent, her affidavit complies with the Rules with respect to evidence based on information and belief.
40Once again, however, the evidence falls short of the requirements of r. 39.01(5). Ms. Marshall’s evidence includes a summary of what was said to and by Mr. Rocheleau during the telephone conversation:
In that conversation they answered questions posed by Mr. Rocheleau about the application and about the intention of the Applicant with respect to the property. Mr. Rocheleau indicated that he was not interested in taking part in the proceeding and nor did he intend to oppose it. He did suggest that the Hume Family might wish to consider a donation to charity once the matter was concluded as a symbolic gesture to the Rougier family.
41The evidence as to what was said by Mr. Rocheleau is not first-hand to Ms. Marshall. No explanation has been provided as to why Mr. St-Onge did not swear an affidavit in which he provides evidence as to what was said by Mr. Rocheleau during the telephone conversation.
42There is no evidence of any other communication with relatives of Leona Rougier—before or after the return of the application on January 22, 2019.
43None of the relatives of Leona Rougier appeared on the return of the application. There is no evidence that any of the relatives of Leona Rougier attempted to deliver materials in response to the application.
The Issues
44The substantive issue raised on the application is: To what relief is HTCL entitled to address (a) the title to the Rougier Property, and (b) the right of way in favour of the Rougier Property?
45There are, however, a number of preliminary issues to be addressed:
- Is HTCL entitled to relief without (a) allowing the 15 relatives of Leona Rougier, to whom the Email was sent, a better opportunity to consider and respond to that message and to the application, and/or (b) making further efforts to locate and communicate with the four relatives of Leona Rougier for whom no email address was provided?
- Is the applicant entitled to an order permitting the proceeding to continue without the appointment of a representative of the Estate of Leona Rougier?
Preliminary Issue No. 1 - Communication with Relatives of Leona Rougier
46After learning that the Rougier Property was not conveyed to him in 1978, Mr. Hume waited more than 12 years before taking steps to seek relief from the court. The Hume family and HTCL have occupied the Rougier Property for more than 40 years. It appears that the real trigger for this application is the undertaking given to the City at the time of the HTCL sale of the Montessori Property (i.e., not issue with title to the Rougier Property).
47Mr. Hume has had more than 13 years to consider the circumstances in which he and HTCL find themselves as a result of what is said to be an oversight with respect to the conveyance of title to Parts 2 and 4 to Mr. Ladouceur when he purchased property from Leona Rougier. Fourteen of Ms. Rougier’s 19 grandchildren were given two weeks to consider and respond to the application. Ms. Parker has had since the fall of 2018 to do so. Four of the grandchildren may not yet have been made aware of the application.
48It may well be that none of the grandchildren has a meritorious claim to the Rougier Property. Their claims, if any, may be statute-barred. On the other hand, the transfer of the Rougier Property to Land Titles may have an impact on HTCL’s claim, if any, based in adverse possession.
49Regardless, I find that the grandchildren are entitled to a clear explanation of the application and a reasonable opportunity to consider what response, if any, they wish to make to the application. The contents of the Email are insufficient in that regard. The Email does not provide a clear explanation in language that a non-lawyer would understand (a) of the relief sought on the application, (b) of the basis for the relief sought, (c) that the grandchildren may wish to consider obtaining independent legal advice, and (d) that there is no one representing the Estate of Leona Rougier in a representative capacity or as counsel.
50No efforts were made by HTCL to locate the four grandchildren for whom no email address was provided. Inquiries of the grandchildren, other than Ms. Parker, to whom the Email was sent may lead to a mailing address and/or an email address for each of those four grandchildren.
51Taking into consideration the shortcomings in the quality of the evidence before the court with respect to Estate of Leona Rougier, there is uncertainty as to whether anyone other than the Estate of Leona Rougier should be served with the notice of application. Sub-rule 38.06(1) provides that (a) the notice of application is to be served on all parties, and (b) “where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.” HTCL did not seek directions with respect to service before proceeding with the application.
52The Estate was not, in any event, served with the notice of application; relief dispensing with the requirement for service of the notice of application on the Estate is sought.
53Sub-rule 38.06(2) addresses the options available to the court where it appears that the notice of application ought to have been served on a person who has not been served. Those options include adjourning the application and directing that the notice of application be served on the person (r. 38.06(2)(b)).
54In the Disposition section of this endorsement, directions are set out with respect to service, on the grandchildren of Leona Rougier, of the notice of application, all supporting affidavits, and factum relied on by HTCL in support of the relief requested.
Preliminary Issue No. 2 - Lack of Representative of the Respondent Estate
55Sub-rule 9.02(2)(a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, provides that a proceeding commenced by naming an estate (without naming a representative of the estate) shall not be treated as a nullity. Pursuant to that sub-rule, the court has the discretion to order that the proceeding be continued against “the proper executor or administrator of the estate” or against a litigation administrator appointed for the purpose of the proceeding. If such an order is made the title of proceeding is to be amended accordingly.
56HTCL asks the court to make an order that the proceeding continue in the absence of a person representing the estate. In making that request, the applicant relies on r. 10.02. That rule provides:
Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.
57A copy of the title register for the Rougier Property is included as an exhibit to the Hume Affidavit. It shows that Leona Rougier purchased the Rougier Property in 1954. The information provided by Patricia Rougier is that Leona Rougier passed away in 1965.
58In her email to counsel for the applicant, Patricia Rougier says that Leona Rougier left the entirety of her estate to her oldest daughter, Alma Bonner. Ms. Bonner is said to have passed away in the early 1980s and left her estate to her oldest sister. The oldest sister is also said to be deceased.
59HTCL acknowledges that the court is to be cautious in granting authority to proceed with litigation without the burden of appointing a representative of an estate (Roiz v. Vaserbakh (1986), 9 C.P.C. (2d) 141 (Ont. Dist. Ct.)).
60HTCL relies on Sloan v. Fox Estate, 2011 ONSC 3747 as an example of a case in which the court made an order pursuant to r. 10.02. The Sloan case is, however, distinguishable from the matter before the court.
61First, the issue in Sloan was whether the proceeding could continue without the appointment of a representative of the Moldaver Estate. That estate had an interest in the Fox Estate. The late Mr. Moldaver was a named beneficiary in his mother’s (Eve Fox) will. Ms. Sloan alleged that she was both a beneficiary and creditor of the Moldaver Estate; therefore she had an interest in the interpretation of Eve Fox’s will.
62The issue at the heart of Sloan was the interpretation of a will, not the ownership of property that had, for more than 60 years (since 1954 when Leona Rougier first purchased the property) remained registered in the name of a now deceased individual.
63Second, a factor considered by Hoy J. in Sloan was that if, as requested, Ms. Sloan was appointed as executor of the Moldaver Estate, for the purpose of the proceeding and the application prevailed, Ms. Sloan might later have to be replaced as executor. Her position as a creditor of the Moldaver Estate put her in a position of conflict in actually administering the estate.
64Hoy J. referred to r. 1.04(1) which provides that the Rules, “shall be liberally construed to secure the just, most expeditious and the least expensive determination of every civil proceeding on its merits.” She noted that if Ms. Sloan succeeded on her application—and the Moldaver Estate was found to be entitled to $350,000, as alleged, from the Fox Estate—only then would it be necessary to appoint an executor of the (otherwise insolvent) Moldaver Estate. Hoy J. considered that unless the application prevailed, the appointment of a representative of the Moldaver Estate for the purpose of interpreting Eve Fox’s will was an “unnecessary expense” (para. 15).
65There is insufficient evidence in support of HTCL’s application for a determination to be made as to whether the appointment of a litigation administrator, for the respondent estate, solely for the purpose of the application would be an “unnecessary expense”.
66Third, in Sloan, there were no facts in dispute. HTCL’s application was unopposed on the original return date. Based on the record before the court, however, I am unable to conclude that there are no facts in dispute. There are deficiencies in the evidence. Those deficiencies contribute to my decision not to grant the relief requested pursuant to r. 10.02—at least at this stage of the application.
67Fourth, in Sloan, the parties to the proceeding were on notice that a request was being made for an order pursuant to r. 10.02. HTCL’s request for relief pursuant to r. 10.02 is not included in the relief sought in the notice of application. The request for that relief was made in writing, in a letter sent to the court by Mr. Lenz, approximately one week after the return of the application. There is no evidence that a copy of Mr. Lenz’ letter to the court was provided to any of Leona Rougier’s grandchildren or to Mr. Smith.
68The relief requested in the notice of application includes, “If necessary, an order dispensing with service of this Application Record and Factum on the Respondent”. It is unclear from the notice of application whether HTCL intended to effect service of relevant materials on the Estate.
69There is no evidence before the court that the grandchildren of Leona Rougier were informed that the applicant requires relief from the court to proceed against the Estate without a representative. The grandchildren may well have formed the belief that (a) the Estate of Leona Rougier was served with the relevant documents, (b) the Estate is represented in the matter, and (c) a lawyer would be attending on the return of the application to make submissions on behalf of the Estate. For example, in her responding email, Patricia Rougier addresses the possibility of a judgment in favour of the Rougier Estate.
70The failure of HTCL to notify the grandchildren of all of the relief sought and the lack of clarity with respect to whether the respondent estate had been or would be served with the relevant documents are two additional reasons why the grandchildren are entitled to better information about the application.
71Fifth, in Sloan, the monetary amount at stake was known—$350,000. There is no evidence before the court on this application of the monetary value of Parts 2 and 4. The evidence with respect to the monetary amounts involved is restricted to the following:
- In 1954 Ms. Rougier paid $1,100 for Parts 2 and 4 (if not Parts 1-4). That evidence is from the Title Register for Parts 2 and 4. The Title Register for Parts 1 and 3 is not before the court. It may show the purchase price paid by Mr. Ladouceur for property he is alleged to have believed included Parts 1-4; and
- When Mr. Hume purchased the Ladouceur Property in 1978 (for $8,000), the property tax assessment on two areas of land was $200.
72There is no evidence as to the price paid to HTCL for the purchase of the Montessori Property. There is no appraisal as to the total value of Parts 1-4. The value of the Rougier Property and of the Montessori Property may be relevant to the determination of whether it is reasonable to require that a representative of the respondent estate be appointed.
73Sixth, in Sloan there was no one in a position to fulfil the role of representative of the Moldaver Estate for the limited purpose of the litigation. The sole executor of the Moldaver Estate had renounced her position. That individual was a beneficiary of the Fox Estate and therefore in a position of conflict.
74Other beneficiaries of the Moldaver Estate (who stood to gain if the application was successful) did not oppose the relief sought by Ms. Sloan. In addition, a number of the beneficiaries under the Moldaver Estate were also beneficiaries under the Fox Estate. The interests of those beneficiaries was greater under the Fox Estate (i.e., if the Sloan application was dismissed).
75Once the grandchildren of Leona Rougier have had an opportunity to fully consider the application and, should they choose to do so, seek independent legal advice, one or more of them may be interested and able (i.e., not in a position of conflict) to act as a representative of the respondent estate for the purpose of the litigation.
76After learning of the status of the title to Parts 2 and 4, Mr. Hume waited more than 12 years to take any steps to seek relief in that regard. The relatives of Leona Rougier were given only two weeks’ notice (albeit informally) of the application. HTCL did not inform the relatives of Leona Rougier of the full extent of the relief requested on the application.
77As HTCL acknowledges, the relief sought pursuant to r. 10.02 is granted “cautiously” (Sloan, para. 14). At para. 15 of her decision in Sloan, Hoy J. concludes that “[on] the very particular facts of this case” she would make an order pursuant to r. 10.02. On the basis of the record presently before the court, HTCL is not entitled to relief pursuant to r. 10.02.
78It remains open to HTCL to file additional evidence in support of the application, including with respect to the relief sought pursuant to r. 10.02.
Additional Evidence
79There are a number of deficiencies in the evidence filed in support of the motion. Some of those deficiencies arise because the contents of Ms. Marshall’s affidavits do not meet the requirements of r. 39.01(5).
80A number of the documents related to transactions with respect to the purchase and sale of portions of the Property are not included in the record. It is not clear whether those documents were not included as a matter of choice or because they are no longer available.
81The absence of those documents is addressed under Issue No. 2, above. It is up to HTCL to decide whether it intends to maintain the request for relief pursuant to r. 10.02 and, if so, what additional evidence it intends to file in support of that aspect of the relief sought.
Interim Disposition
82As noted above under Issue No. 1, the grandchildren of Leona Rougier are to be given a reasonable opportunity to consider and, if they choose to do so, respond in some way to the application. With respect to Issue No. 2, it is possible that one or more of the grandchildren may be interested and in a position to be appointed as the litigation administrator for the respondent estate.
83I order as follows:
- The application is adjourned to permit the applicant to file additional evidence in support of the application.
- The applicant shall take the following steps to inform the grandchildren of Leona Rougier of this endorsement and the date on which the application is scheduled to continue: a) The applicant shall send by email to each of the 15 grandchildren of Leona Rougier, for whom it was provided an email address by Barbara Parker (through her counsel), a letter providing a clear explanation in language that a non-lawyer would understand: i) of the relief sought on the application; ii) of the basis for the relief sought; iii) that the grandchildren may wish to consider obtaining independent legal advice; iv) that the applicant will pay the reasonable expenses incurred by the grandchildren for independent legal advice, and v) that there is no one representing the Estate of Leona Rougier in a representative capacity or as counsel (“the Letter”); b) The applicant shall, when sending the Letter, include copies of all supporting affidavits relied upon, the original factum filed on the application, and any supplementary factum filed on behalf of the applicant; c) The applicant shall, in the Letter, ask the 15 grandchildren for the contact information (email or otherwise) of the four grandchildren for whom no email address was provided by Ms. Parker; d) Upon receipt of contact information, if any, for any one or more of the four grandchildren, the applicant shall send to those grandchildren the Letter, the notice of application, and copies of all supporting affidavits relied upon, and any supplementary factum filed on behalf of the applicant;
- The applicant shall file with the court copies of the cover emails and transmission confirmation forms for each email sent pursuant to paragraph 2, above.
- The date for the continuation of the return of the application shall be at least 30 days subsequent to the date on which the Letter is sent to the last of the grandchildren whom the applicant is able to locate and to whom the Letter is sent (i.e. the last of the four grandchildren).
84I remain seized of this matter and the continuation of the application shall be scheduled before me.
Madam Justice Sylvia Corthorn Released: July 26, 2019
COURT FILE NO.: CV-18-77954 DATE: 2019/07/26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HUME TRADING COMPANY LIMITED Applicant – and – THE ESTATE OF LEONA ROUGIER Respondent ENDORSEMENT Madam Justice Sylvia Corthorn Released: July 26, 2019