Court File and Parties

COURT FILE NO.: 489/19 DATE: 2020/03/27 SUPERIOR COURT OF JUSTICE – ONTARIO

In the matter of the estate of Adeline Marie Belanger, deceased

RE: RICHARD BELANGER, in his personal capacity and his capacity as estate trustee of the estate of Adeline Marie Belanger, and his capacity as attorney for property for Adeline Marie Belanger, Applicant

AND:

JANICE HARWOOD, in her personal capacity and her capacity as estate trustee of the estate of Adeline Marie Belanger, JUDITH OLIVASTRI, in her personal capacity and her capacity as Estate Trustee of the estate of Adeline Marie Belanger and 1193548 ONTARIO INC., Respondents

BEFORE: Justice I.F. Leach

COUNSEL: Amanda Bettencourt, for the Applicant Lou-Anne F. Farrell, for the Respondent Ms Harwood W. Scott Gallagher, for the Respondent Ms Olivastri No one appearing for the Respondent corporation

HEARD: March 9, 2020

Endorsement

Introduction

[1] Currently before me, in this protracted estate litigation, are an application brought by Richard Belanger and a responding motion brought by Judith Olivastri.

[2] The application brought by Mr Belanger seeks:

i. an order directing that various issues surrounding the administration of his mother’s estate be referred to The Honourable John McGarry, Q.C., a retired judge of this court whose present services include mediation and arbitration; ii. an ancillary order directing that Mr Belanger have carriage of the directed reference; and iii. the “opinion, advice or direction of the court on the question of what issues will be before the referee at the arbitration” (sic).

[3] The responding motion brought by Ms Olivastri seeks an order dismissing Mr Belanger’s application.

[4] For her part, Ms Harwood formally supports the position of Ms Olivastri that Mr Belanger’s current application should be dismissed, although she indicates that she is amenable to the granting of other relief.

Background and context

[5] The application and motion presently before me are brought in the context of protracted estate litigation. That background was outlined in extensive detail in the substantial material filed by the parties.

[6] For present purposes, however, I think the following summary will suffice:

a. Richard Belanger, Judith Olivastri and Janice Harwood are siblings, and the children of Adeline Belanger, who died on June 21, 2007. Mrs Belanger was predeceased by her husband; i.e., the father of the three siblings. b. At all material times, the principal asset of Mrs Belanger’s estate has been its exclusive ownership of shares in the corporate respondent; i.e., 1193548 Ontario Inc., hereinafter referred to as “the Farm Corporation”. The corporation was created in 1996, and Mrs Belanger remained its sole officer and shareholder up until the time of her death. c. The assets of the Farm Corporation are substantial, but primarily consist of valuable real estate; i.e., 152 contiguous acres of farm land located at a specified municipal address in Chatham-Kent. That property formally consists of two adjacent parcels of land; i.e., a 100-acre lot, (“the Farm Property”), and an adjacent 52-acre lot, (“the Homestead Property”), with the latter being the site of two surviving but vacant structures; i.e., a farmhouse, (the former family residence which nevertheless has been vacant since 2003), and a nearby garage. d. Pursuant to the estate arrangements outlined in Mrs Belanger’s will, all three of her children were appointed as her estate trustees, and the residue of her estate is to be divided between the three children in equal shares per stirpes. e. The three siblings nevertheless are hopelessly estranged and suspicious of each other’s motives and conduct, such that their interactions, (through legal counsel), remain mired in disputes and deadlock. In the result, more than 13 years after Mrs Belanger’s death, probate has not been issued in relation to her estate, and the estate accordingly has not been administered. f. In the meantime, the parties have engaged in litigation. Without limiting the generality of the foregoing:

i. Ms Olivastri commenced an application in or around January of 2014, (apparently supported by Ms Harwood), seeking relief that included Mr Belanger’s removal as an estate trustee, and an order compelling Mr Belanger to pay certain funds to the estate. In that regard, it is alleged that Mr Belanger owes a mortgage debt to his mother’s estate that must be repaid. ii. Mr Belanger responded with a counter-application of his own, (commenced in or around March of 2014), seeking the opinion, advice and direction of the court in relation to the management and administration of his mother’s estate. iii. On or about September 8, 2015, the applications came before Justice Hebner, who made a number of case management directions and orders. Amongst other things, Justice Hebner, essentially exercising the jurisdiction conferred by Rule 38.10(1)(b) of the Rules of Civil Procedure, ordered that:

1. the question of whether Mr Belanger should be removed as an estate trustee was to be heard and determined by a special appointment motion to be heard on January 29, 2016; and
2. the question of whether Mr Belanger was required to repay a mortgage debt to his mother’s estate would proceed by way of a trial of an issue; i.e., a four-day trial, (alternatively described as a four-day “special appointment”), that was set to begin on May 24, 2016.

iv. The motion scheduled for a special appointment hearing on January 29, 2016, apparently could not proceed for some reason and was adjourned. Justice Rady was involved in rescheduling of that motion, and directed that a pretrial conference be held before her on April 25, 2016. v. At the pretrial conference on April 25, 2016, Mr Belanger, Ms Olivastri and Ms Harwood entered into what essentially were minutes of settlement, formally styled an “Agreement in Principle”.

g. The aforesaid “Agreement in Principle” lies at the heart of the current application and motion, and its provisions, (with their original capitalization, punctuation and/or lack of punctuation, but omitting the date and signature lines that appear at the end of the agreement), read as follows:

AGREEMENT IN PRINCIPLE

JUDITH OLIVASTRI JANICE HARWOOD RICHARD BELANGER

On condition precedent that “butterfly” transaction approved by Revenue Canada

1. 50 ACRE HOMESTEAD LOT TO JUDY OLIVASTRI (The one with existing standing farm home).
2. West 50 ACRE LOT TO RICHARD ON SEVERANCE AN IN THE INTERIM WEST 50 ACRES.
3. East 50 ACRE LOT TO JANICE ON SEVERANCE AND IN THE INTERIM EAST 50 ACRES.
4. JOHN MATHANY – WALLACEBURG TO PERFORM LEGALS FOR SEVERANCE AND BUTTERLY.
5. HOUSE AND SURROUNDING TREES TO BE DEMOLISHED and land returned to farmland AT CORPORATION EXPENSE after tax approval for butterfly transaction. 5A. Any unused wells to be de-commissioned at the corporation expense on all three 50 acre parcels.
6. BDO LONDON – RENE ZWINKELS TO DO BUTTERFLY ACCOUNTING. 6A. Corporation to pay for survey immediately to assist for farming and for severance.
7. JUDY TO DECIDE ON DEMOLITION CONTRACTOR WITH APPROVAL OF EXECUTORS OR McGARRY.
8. $25,000 RELEASED TO EACH BENEFICIARY AS INTERIM DISTRIBUTION OR NON RECOURSE LOAN. 8A. Each of parties may farm or lease their intended 50 acre parcel immediately and keep any profit or bear any loss.
9. LIMITATIONS ISSUE – RICHARD WILL DEFEND MORTGAGE ACTION ON LIMITATIONS DEFENCE AND DISCONTINUE GIFT DEFENCE – ISSUE TO BE DECIDED BY MR. McGARRY. MATTER MAY BE PLEADED AS NECESSARY. Judy and Janice may argue that Richard liable as fiduciary by letting limitation period lapse if it did lapse.
10. ATTORNEY-EXECUTOR FEE CLAIMS TO BE DETERMINED BY MR. McGARRY. After Butterfly Transaction Concluded and after resolution of the mortgage – limitations issue including any appeal.
11. ALL ISSUES NOT RESOLVED WILL BE REFERRED ON CONSENT TO MR. McGARRY AS CONTAINED IN OUTSTANDING APPLICATIONS AND MOTIONS. BY CONSENT ORDER FOR A REFERENCE. (The parties anticipate that an Order for Reference must be issued by the Court.)

h. The “butterfly transaction”, referred to repeatedly in the aforesaid Agreement and in the material filed by the parties, is the informal description given to a contemplated arrangement, permitted by the Canada Revenue Agency (“the CRA”) in certain circumstances, to facilitate the formal transfer of ownership of certain corporate property without immediate tax consequences. At the risk of over-simplification:

i. Such a transaction involves a formal reorganization of corporate assets, whereby the assets of one corporation are formally transferred to two or more other corporations owned by shareholders of the original corporation. ii. If certain conditions are met, the immediate tax liability otherwise triggered by such transfers, and corresponding formal dispositions of property by the original corporation, essentially may be deferred; i.e., by the new recipient corporations taking the transferred property on a tax deferred basis. iii. Again, certain conditions must be met to achieve such a permissible tax deferral. One of the most important of those conditions is a requirement that the assets of the original corporation be divided evenly between the new recipient corporations. For example, in a situation where property is held by original “Corporation A”, and that property is to be divided and transferred to three new recipient corporations, (“Corporation “B”, “Corporation C” and “Corporation D”), each of the three recipient corporations must receive an approximately equal one third share, (or 33.33 percent), of Corporation A’s property. I say “approximately” because the desired tax deferral is allowed even if the shares of divided and transferred property received by the new corporations are not precisely the same, but the percentages of assets taken by each new recipient corporation, when compared to each other, are within a permissible one percent variation of the total assets being transferred. So, continuing with my example, if the assets of original Corporation A are divided and transferred to Corporation B, Corporation C, and Corporation D, the tax deferral will be permitted if each of the three new transferee corporations receives between 32.33 and 34.33 percent of the total original assets of Corporation A. iv. In the present case, Mrs Belanger’s three children, estate trustees and equal beneficiaries of her estate residue accordingly contemplated such a division and tax deferred “rollover” of the Farm Corporation assets; i.e., with the underlying farm property being severed into three lots of approximately equal size and value, with each of the three resulting smaller lots then being transferred to one of three newly created corporations, in circumstances where each of those three corporations is owned exclusively by one of the three siblings.

i. In the wake of the aforesaid “Agreement in Principal” reached by the parties, various steps were taken and/or suggested to ready the proposed butterfly transaction for consideration, (and hopefully approval as well), by the CRA. For example, such steps involved:

i. the retention of an accounting firm to provide tax advice in relation to the butterfly transaction; ii. the retention of counsel to incorporate the three new recipient corporations, with each one to be owned exclusively by one of the three siblings; iii. arrangements for the surveying and contemplated severance, (requiring municipal approval), of the land owned by the original Farming Corporation; iv. formal appraisal of the underlying real estate, in an effort to confirm the value of the three resulting parcels of land; and v. the development of competing proposals to address and equalize the slightly uneven distribution of Farming Corporation assets that would result from the underlying real estate being incapable of division into three parcels of land of precisely equal size and value; e.g., insofar as the arrangement contemplated Ms Olivastri’s new recipient corporation receiving a parcel of land (the original homestead lot) that was 51.73 acres in size, whereas the new recipient corporations of Mr Belanger and Ms Harwood each would be receiving a parcel of land, (i.e., half of the additional and larger original lot of land owned by the Farming Corporation), that turned out to be 49.8 acres in size.

j. Unfortunately, additional mounting disputes have delayed and prevented agreement on the form and content of a submission, to the CRA, seeking an advance tax ruling as to whether the contemplated butterfly transaction would permit the tax deferral contemplated by the parties. Without limiting the generality of the foregoing:

i. Mr Belanger expressed concerns that the residence on the homestead property was the subject of repairs and maintenance, (e.g., cleaning, upgrading of an electrical connection, and the making of repairs a deck and stairs to that deck), inconsistent with provisions of the parties’ Agreement in Principle contemplating demolition of the residence. That in turn apparently fueled concern on the part of Mr Belanger that Ms Olivastri did not intend to abide by the parties’ agreement, and was instead taking measures to increase the value of the residence and the homestead parcel of land on which it was located, in turn resulting in Ms Olivastri potentially receiving a benefit from the estate greater than that received by her two siblings if the contemplated butterfly transaction and associated division and reallocation of the Farm Corporation’s real estate was implemented. ii. For related reasons, Mr Belanger expressed concerns about the appraisal obtained in relation to the underlying real estate, suggesting that it inaccurately and improperly had “ignored” the existing residence and garage structures on the homestead parcel of land, and accordingly had failed to consider the “highest and best use” of that particular underlying real estate when appraising its value. That in turn was said to fuel concern that Mr Belanger essentially was being asked to participate in tax evasion by joining in the making of alleged misrepresentations to the CRA, and/or that the CRA would not give a favourable advance tax ruling in relation to the butterfly transaction proposal if it was submitted in the form approved by his sisters; i.e., because the homestead parcel of land had been undervalued through failure to consider the extent to which the residence and garage added value to that real estate. iii. Mr Belanger, (with the support of a chartered accountant named Rick Grewal, retained by Mr Belanger), also suggested that appropriate mechanisms for perfectly equalizing the division and reallocation of Farm Corporation assets, (to the extent that could not be done with precision through attempts to divide and reallocate inherently different parcels of real estate), would include:

1. demolition of the homestead residence and garage, and the commissioning of further appraisals, prior to the proposed butterfly transaction being submitted to the CRA for consideration; and
2. mortgage financing of the homestead real estate to be allocated to Ms Olivastri’s corporation, with such financing then being used to address and eliminate, (e.g., via precise equalizing payments to the corporations of Mr Belanger and Ms Harwood), the possibility of Ms Olivastri’s corporation receiving a greater share of the estate assets than the corporations owned by her siblings.

iv. In contrast, Ms Olivastri and Ms Harwood have emphasized considerations that include the following:

1. Although Mr Belanger now takes the position that the residence on the homestead property should be demolished immediately, the provisions of the Agreement in Principle arguably make it quite clear, (i.e., in paragraph 5 of the agreement), that the house, along with surrounding trees, were to be demolished, and the underlying land in the relevant area returned to farmland, after tax approval had been obtained for the contemplated butterfly transaction.
2. Changes made at and to the residence on the homestead land do not reflect any intended deviation from the siblings’ consensus that the residence will be demolished. For example: any “cleaning” efforts are said to have been limited to a cursory removal of spider webs and the boxing of items found in the residence, in anticipation of the estate administration proceeding; electrical work done at the residence is said to have been performed for safety purposes after a storm brought down a tree branch which had severed the existing hydro line to the house; and it was said that the “bare minimum” of repairs to the relevant deck and stairs had been carried out to address concerns raised by an insurer that the property was unsafe, thereby putting continued insurance coverage at risk. Moreover, it was said that many of the identified changes had been carried out with Mr Belanger’s knowledge and approval.
3. In an earlier affidavit, sworn by Mr Belanger on December 22, 2015, Mr Belanger was said to have indicated his belief that the residence added no value to the homestead property. In particular, in his earlier sworn affidavit, Mr Belanger said this: “I believe, based on my experience managing and renting the property, and in speaking to real estate agents who approach me to purchase the farm lands, that a purchaser of the farm lands would demolish the house for it adds no value.”
4. In the view of Ms Olivastri and Ms Harwood, and their respective counsel, the suggestion that the commissioned appraisal “ignored” the structures on the homestead property, or might improperly conceal anything from the CRA, is simply and obviously inaccurate. The appraisal report expressly notes that the homestead parcel of land has a residence and garage, located along the south boundary of the property, and occupying approximately ¾ of an acre of land, with an asphalt driveway, (in poor condition), linking the structures to the nearby Creek Drive roadway. The report also includes numerous photographs of the two structures, as well as a “Description of the Subject Buildings” that includes express indications that the two buildings were “considered derelict” for stated reasons; i.e., because the garage is “in poor condition” and the residence, in addition to being “in poor condition” as well, “has a number of environmental and structural deficiencies”. In other words, the appraisal did not “ignore” the two buildings, as Mr Belanger has suggested. To the contrary, it expressed declared and recognized the existence of the two structures, but essentially noted that they add no value to the homestead property for the reasons expressly noted in the appraisal report.
5. Wayne Tjoelker, (another chartered accountant who has practised with BDO Canada LLP since 1997, and who specializes in Canadian domestic tax), has opined that taking a mortgage against land intended to be the subject of a butterfly transaction, in contemplation of that transaction, effectively would lower the investment value of that real estate and cause the proposed transaction to violate section 55 of the Income Tax Act, R.S.C. 1985, c.1, (5th Supp.).
6. Attempted use of mortgage financing to equalize the redistribution of Farm Corporation assets is not required in any event, as a careful review of the financial statements of the Farm Corporation by BDO Canada LLP has disclosed the existence of a further asset of the corporation - i.e., a long-outstanding shareholder loan – that legitimately can be allocated as a liability against the parcel of real estate to be received by Ms Olivastri’s corporation, thereby reducing the value of the assets that corporation would be receiving, in turn producing a contemplated division of the Farm Corporation’s assets between the three new corporations of the three siblings that would be approximately equal, with a variation falling within the permissible one percent variation allowance noted above.
7. Moreover, for the expressly stated purpose of addressing and eliminating any remaining inequality of asset division, (i.e., falling within the permissible one percent variation allowance), Ms Olivastri proactively has volunteered to participate in proposed use of a further mechanism; i.e., a slightly unequal declaration and division of a capital dividend account balance, resulting in each of Ms Olivastri’s siblings receiving a comparatively greater portion of that declared capital dividend.

k. In the result, while Ms Olivastri and Ms Harwood have agreed to provide BDO Canada LLP with authority to provide its draft submission to the CRA, with a view to seeking and obtaining the CRA’s advance approval of the proposed butterfly transaction, Mr Belanger has refused to do so. In the circumstances, no proposal has been submitted to the CRA for consideration, and the three siblings are once again at an impasse that has further delayed administration of their mother’s estate.

Overview of party positions

[7] In the course of submissions, all concerned agreed and emphasized that I was not being asked to decide substantive disputes about the form or content of any application to the CRA in relation to the contemplated butterfly transaction, but was instead being asked to address the question of how and by whom such issues should be determined.

[8] In that regard, it was argued on behalf of Mr Belanger that “issues surrounding the administration of the estate”, (including but not limited to issues surrounding the proper form and content of the contemplated application to the CRA in relation to the proposed butterfly transaction, and therefore the form of the transaction as well), should be referred to Mr McGarry for determination. In support of that position:

a. it was alleged that the siblings had reached a binding agreement to have their disagreements resolved in that manner; b. reliance was placed on the Arbitration Act, 1991, S.O. 1991, c.17, as well as numerous authorities requiring the court to respect and enforce arbitration agreements; and c. particular reliance was placed on what has been described as the “competence-competence principle”, reflected in s.17(7) of that legislation and corresponding judicial authority, emphasizing that an arbitrator, agreed upon in an enforceable arbitration agreement, can and should be permitted to determine the limits of his or her own jurisdiction as a preliminary question at the arbitration hearing.

[9] As a “fall back” position, counsel for Mr Belanger indicated that he would be content, for the time being, with an order confirming and directing that all disputes relating to the butterfly transaction were to be decided by Mr McGarry pursuant to the parties’ agreement.

[10] In response, Ms Olivastri and Ms Harwood both expressed apprehension that their brother has been engaging in machinations to obstruct completion of the butterfly transaction, unless and until progress in that regard is once again accompanied by some method of preserving his ability to argue that Mrs Belanger intended to make a gift of sums her son originally received through mortgage financing.

[11] Both sisters take the position that there was never any agreement between the siblings to have issues determined by arbitration, (as opposed to a determination by way of a court-directed reference), and that the agreement reached by the siblings clearly contemplated that certain matters and remaining disputes would be referred to Mr McGarry if and only if the contemplated butterfly transaction had been approved by the CRA. In particular, they say there was never an agreement to have Mr McGarry decide disputes relating to the butterfly transaction itself.

[12] On that basis, the sisters say, Mr Belanger has no right to the relief sought in his application, which arguably should have been sought, in any event, by a motion brought in the context of one of the extant applications rather than by way of yet another proceeding.

[13] Ms Harwood has indicated, (without bringing an application or motion of her own), that she would be amenable to expanding the scope of any agreed reference to Mr McGarry to include issues relating to the butterfly transaction, provided there was an initial determination of what issues had been finally resolved by the “Agreement in Principle” reached by the parties. However, there was no such agreement by Ms Olivastri.

Analysis

[14] Although counsel for Mr Belanger cited and relied upon numerous considerations and principles employed by courts to determine the existence of binding contracts, in my view there actually was no dispute that the “Agreement in Principle”, described above, represents a binding and enforceable agreement between Mr Belanger, Ms Olivastri and Ms Harwood. In particular:

a. In his sworn affidavit material, Mr Belanger confirms his belief that the pretrial conference before Justice Rady, on April 25, 2016, culminated in he and his sisters entering into the Agreement in Principle, and thereafter refers to “the agreement” and an alleged failure on the part of his sisters to “follow through with the agreement”. b. In her sworn affidavit material, Ms Olivastri refers to the fact that, on April 25, 2016, she and her siblings “negotiated a resolution of [their] dispute”, and “settled the case”, “by agreeing” on the provisions of the signed “Agreement in Principle”. Her complaint is that Mr Belanger “has been refusing to go ahead with the April 25, 2016 settlement”. c. In her sworn affidavit material, Ms Harwood refers to the Agreement in Principle signed at the London courthouse during the pretrial hearing on April 25, 2016, and thereafter outlines her understanding of what was and was not intended “when [she] agreed to this”.

[15] There accordingly is no question that the siblings reached an agreement, although the nature, scope and effect of that agreement is in issue.

[16] In my view, there also can be no dispute about numerous well-settled principles, (many of which were emphasized on behalf of Mr Belanger), relating to arbitration agreements. For example:

a. An “arbitration agreement” means an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them. [1] b. An arbitration agreement may be an independent agreement or party of another agreement, and may be revoked only in accordance with the ordinary rules of contract law. [2] c. The law of Ontario includes a relatively recent and clear shift in policy, on the part of courts and the Legislature, towards encouraging parties to submit their differences to consensual dispute resolution mechanisms outside of the regular court process. [3] Reflecting that policy, where the language of an arbitration clause is capable of bearing two interpretations, and on one of those interpretations fairly provides for arbitration, the courts lean towards honouring that option. [4] Similarly, where it is arguable that a dispute falls within the terms of an arbitration agreement, or where it is arguable that a party to the legal proceedings is a party to the arbitration agreement, courts are inclined to stay the legal proceedings and leave such matters to be determined by the arbitral tribunal. [5] d. When contracting parties specify that any disputes arising from their relationship are to be arbitrated rather than litigated in the courts, they therefore ordinarily are entitled to have their chosen method of dispute resolution respected by the courts. The modern approach is to require parties to adhere to their choice and to view arbitration as an autonomous, self-contained and self-sufficient process, presumptively immune from judicial intervention. [6] e. To that end, the Legislature “entrenches the primacy of arbitration over judicial proceedings … by directing the court, generally, not to intervene”. [7] Indeed, no court, (including the Superior Court of Justice), shall intervene in matters governed by the Arbitration Act, 1991, supra, except for the following limited purposes:

i. to assist the conducting of arbitrations; ii. to ensure that arbitrations are conducted in accordance with arbitration agreements; iii. to prevent unequal or unfair treatment of parties to arbitration agreements; and iv. to enforce awards made by arbitrators. [8]

f. A court may stay a proceeding with respect to matters dealt with in an arbitration agreement, and allow it to continue with respect to other matters, if the court finds that the agreement deals with only some of the matters in respect of which the proceeding was commenced, and it is reasonable to separate the matters dealt with in the arbitration agreement from other matters. [9] g. As noted above, an arbitral tribunal may rule on its own jurisdiction to conduct the arbitration, and may in that connection rule on objections concerning the existence or validity of the arbitration agreement. [10] Indeed, as a general rule in cases involving an arbitration clause, a challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator. An exception arises if the challenge is based solely on a question of law, or one of mixed fact and law, where the question of law requires, for its disposition, “only superficial consideration of the documentary evidence in the record”. [11] h. Once jurisdiction of the arbitral tribunal has been confirmed, an arbitral tribunal thereafter proceeds to decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies. [12] i. Such a substantive decision or “award” of an arbitral tribunal binds the parties, unless it is set aside or varied through circumscribed rights of appeal to the court, and/or a request that the court otherwise set aside such an award. [13]

[17] Relying on such principles relating to arbitration and the enforcement of arbitration agreements, and paragraph 11 of the “Agreement in Principle”, counsel for Mr Belanger asks the court for an order enforcing what she says was a binding agreement between the siblings to have “all issues not resolved”, (or at least unresolved issues relating to the butterfly transaction and the associated application to the CRA for pre-approval), referred to Mr McGarry for determination.

[18] As noted above, Mr Belanger’s application also seeks ancillary orders giving Mr Belanger carriage of that requested reference, and providing the “opinion, advise or direction of the Court on the question of what issues will be before the referee at the arbitration” (sic).

[19] For a number of reasons, I think Mr Belanger’s requests in that regard are fundamentally misconceived, and that his application must be dismissed accordingly.

[20] First, although Mr Belanger’s application clearly equates a “reference” to an “arbitration” and a “referee” to an “arbitrator”, (as highlighted by the request in Mr Belanger’s notice of application for the court’s guidance as to what issues “will be before the referee at the arbitration”), and the two processes have some superficial similarities, (e.g., insofar as initial substantive determinations are made by someone other than a master or judge of the court, with further court steps then being required if a party seeks to enforce those substantive determinations), a reference is something fundamentally different from an arbitration. Without limiting the generality of the foregoing:

a. As noted above, our appellate courts have emphasized that an arbitration is an autonomous, self-contained and self-sufficient process, presumptively immune from judicial intervention. In effect, parties who agree to have certain disputes addressed by arbitration essentially decide to remove certain disputes from the court’s adjudicative jurisdiction, entrusting them instead to an agreed alternative dispute resolution mechanism generally operating outside the court’s process, in a manner presumptively free from court supervision, intervention and disagreement. b. When the court directs a reference in relation to a whole proceeding, or to determine an issue in a proceeding, the court retains its adjudicative jurisdiction but delegates the exercise of that jurisdiction to a referee working within the court system, and presumptively subject to the court’s supervision, control and substantive disagreement. For example:

i. Whereas parties decide whether and when matters will be arbitrated, only a judge has the power to direct a reference, (subject to other constraints indicated by the Rules of Civil Procedure), and the exercise of that power is discretionary, even where affected parties are consenting to the direction of a reference. [14] ii. Whereas parties decide what matters will be arbitrated, how they will be arbitrated and by whom, the judge directing a reference has the power to specify the nature and subject matter of the reference, and who is to conduct it, including:

1. the ability to provide general directions regarding inquiries to be made, accounts to be taken and costs to be assessed;
2. the ability to provide directions of any kind, (general or specific), for the conduct of the reference; and
3. the ability to designate which party is to have carriage of the reference. [15]

iii. Whereas an arbitrator selected by parties operates outside the court system, any designated referee to whom a judge directs a reference, (including a person agreed upon by the parties), remains an officer of the court directing the reference. [16] iv. Moreover, whereas parties deciding to proceed by arbitration have the power to determine how much the chosen arbitrator will be paid and by whom, a judge directing a reference to a person agreed upon by the parties retains control over that referee’s remuneration and the liability of parties for its payment. [17] v. Whereas motions relating to the conduct of an arbitration generally are determined by the arbitrator, (subject to certain limited exceptions and restricted rights of appeal to the court), motions made in connection with a reference may be heard and disposed of by a judge or master, with the consent of the referee or even in the absence of such consent. [18] vi. Whereas substantive determinations of an arbitrator generally are final, binding and amenable to court enforcement, (subject to limited rights of appeal to the court), the findings and conclusions of a referee have “no effect” unless and until the referee makes a required report setting out his or her findings and conclusions, and that report has been confirmed pursuant to further court procedures; procedures which not only enable the court to require further substantive reasons from the referee for his or her findings and conclusions, but also give the court a wide discretion to “confirm the report in whole or in part, or make such other order as is just”. In other words, the court always retains its jurisdiction to make final determinations in relation to any matter that is the subject of a reference, regardless of the preliminary findings or conclusions of a referee. [19]

c. In my view, given the fundamentally different nature of arbitrations and references, the legislation and principles developed in relation to arbitration and arbitration agreements, (designed to promote the autonomy of arbitrators exercising jurisdiction outside the court process by party agreement), cannot and should not be extended to references and agreements to request a court directed reference, which are designed to ensure supervision and control over the exercise of court-ordered delegations of jurisdiction within the court process. The approach of the Legislature and courts to arbitrations and the approach of the Legislature and courts to references have quite different underlying goals and objectives, and work in opposite directions.

[21] Second, in my view, the provisions of the “Agreement in Principle” which Mr Belanger seeks to enforce, (i.e., the provisions of paragraph 11), clearly reflect an agreement by the three siblings to request the court’s direction of a reference in relation to specified matters, rather than an agreement to have such matters decided by arbitration. In that regard:

a. Again, for ease of reference, the provisions of paragraph 11 of the Agreement in Principle read as follows: “ALL ISSUES NOT RESOLVED WILL BE REFERRED ON CONSENT TO MR McGARRY AS CONTAINED IN OUTSTANDING APPLICATIONS AND MOTIONS. BY CONSENT ORDER FOR A REFERENCE. (The parties anticipate that an Order for Reference must be issued by the Court.)” [Emphasis added.] b. The provisions self-evidently contain no mention whatsoever of any arbitration, or intention to arbitrate. In contrast, they include two express indications that the parties contemplated a “reference”, and a further indication that certain matters would be “referred”. c. The parties also expressly indicate their awareness that the contemplated procedure would require “an order for reference”, which would have to be “issued by the court”. In my view, the only sensible interpretation of those agreed provisions is that the parties were making reference to the procedures, mandated by Rule 54 of the Rules of Procedure, for the direction of a reference by the court. Conversely, by expressly acknowledging that resort to the procedure contemplated by the parties could not be accomplished by their unilateral agreement, but instead required the making of a court order, the parties implicitly if not explicitly indicated and confirmed that the contemplated procedure was not arbitration. [20] d. In my view, the reliance placed by Mr Belanger and his counsel on legislation and principles relating to arbitration and the enforcement of arbitration agreements therefore is fundamentally misconceived, as the present situation involves neither.

[22] Third, even when the “Agreement in Principle” is properly viewed as an agreement by the three siblings to ask that certain disputes be the subject of a court directed reference to Mr McGarry, there was no agreement that such disputes would include those related to the contemplated butterfly transaction. In that regard:

a. Mr Belanger and his counsel, in an effort to have such matters directed to Mr McGarry, essentially focused on the broad wording of certain portions of paragraph 11 of the Agreement in Principle, considered in isolation. In particular, it was emphasized repeatedly that the wording of paragraph 11 includes words indicating that “ALL ISSUES NOT RESOLVED WILL BE REFERRED ON CONSENT TO MR McGARRY”, and that the parties clearly are incapable of resolving issues that have developed in relation to the contemplated butterfly transaction. b. However, the suggested interpretation put forth on behalf of Mr Belanger selectively relies on only part of the wording of paragraph 11 of the Agreement in Principle, without proper regard to the surrounding context of additional wording in that paragraph. In particular:

i. As noted above, the complete wording of the first sentence of paragraph 11, in which the wording relied upon by Mr Belanger appears, reads as follows: “ALL ISSUES NOT RESOLVED WILL BE REFERRED ON CONSENT TO MR McGARRY AS CONTAINED IN OUTSTANDING APPLICATIONS AND MOTIONS.” [Emphasis added.] ii. When the words relied upon by Mr Belanger properly are read in the context of the full sentence in which they appear, I think it clear that the parties did not agree to have any and all unresolved issues referred to Mr McGarry. They instead were focused on issues “contained in outstanding applications and motions”, and in my view that sensibly must be construed as a reference to the applications and motions the parties were focused upon, and intended to settle and resolve, when negotiating the agreement reached at the relevant pretrial conference. Such an intention is reinforced by the parties’ express reference to “outstanding” applications and motions, in contrast to any applications and motions the parties might bring in the future. iii. At the time of the parties’ agreement, the “outstanding applications and motions” in which they were involved did not include any focus on the contemplated butterfly transaction; a concept that apparently was introduced and raised by the settlement agreement itself.

c. Moreover, the suggested interpretation put forth on behalf of Mr Belanger also fails to read the emphasized words of paragraph 11 within the proper context of the parties’ entire agreement. In particular:

i. The suggested broad and unqualified interpretation of those emphasized words effectively ignores the reality that each and every numbered paragraph of the agreement is subject to the opening words of the preamble to the Agreement in Principle; i.e., the wording indicating that the following eleven numbered paragraphs were being agreed “On condition precedent that [the] ‘butterfly’ transaction [is] approved by Revenue Canada”. ii. In my view, those words sensibly bear no other interpretation than an indication by the signatories that all of the following enumerated terms and obligations were contingent upon the stated condition precedent, (i.e., Revenue Canada’s approval of the contemplated butterfly transaction), having happened. That interpretation is reinforced by the parties’ decision to describe the settlement as an “Agreement in Principle”, rather than a simple “agreement”. iii. Moreover, I think the parties accurately described the happening of that event as a true “condition precedent”, in the sense expressed by the Supreme Court of Canada in Turney v. Zhilka, [1959] S.C.R. 578, at pages 583-584; i.e., a situation where “the obligations under the contract, on both sides, depend on a future uncertain event, the happening of which depends entirely on the will of a third party … -- an external condition upon which the existence of the obligation depends…” iv. Unless and until such time as the stated condition precedent agreed upon by the siblings in the preamble happnes, (i.e., unless and until the CRA approves the proposed butterfly transaction), the contemplated obligations set forth in the following 11 numbered paragraphs, (including the contemplated obligation to request a court order, on consent, directing that unresolved issues contained in the then outstanding applications and motions be referred to Justice McGarry), are neither binding nor enforceable.

[23] Fourth, it was suggested, on behalf of Mr Belanger, that the court should direct a reference of issues relating to the butterfly transaction to Mr McGarry in any event, even if the parties had not agreed for that to happen in their “Agreement in Principle”. However:

a. The jurisdiction of the court to direct a reference is not unlimited. To the contrary, as emphasized and explained by the editors of Watson and McGowan’s Ontario Civil Practice, 2020, (Toronto, ON: Carswell, 2020) at p.1232:

i. Pursuant to s.66(2)(q) of the Courts of Justice Act, R.S.O. 1990, c.C.43, the Civil Rules Committee was given authority to make rules, even though such rules might alter or conform to the substantive law, in relation to “references of proceedings or issues in a proceeding, and the powers of a person conducting a reference”. ii. The circumstances in which a reference may be directed accordingly are now governed strictly by the Rules of Civil Procedure, and Rule 54 in particular. iii. Pursuant to the provisions of Rule 54, the former virtually unlimited general power of a judge to direct a reference has been replaced by a more limited power, restricted to the specific circumstances set forth in Rule 54.02.

b. If all affected parties in this litigation consented to having the court direct a reference of issues relating to the contemplated butterfly transaction to Mr McGarry, the court would have jurisdiction to direct such a reference pursuant to Rule 54.02(1)(a) of the Rules of Civil Procedure. However:

i. for the reasons outlined above, neither Ms Olivastri nor Ms Harwood provided any such agreement or consent via the “Agreement in Principle”. ii. Ms Olivastri provided no such consent during the course of the hearing before me, and actively opposed the directing of such a reference; iii. as noted above, Ms Harwood indicated her willingness to consider an expansion of the contemplated reference to Mr McGarry, but only if certain concerns in that regard were addressed as a preliminary matter; and iv. in the absence of consent from all affected parties, the court has no jurisdiction to direct a reference pursuant to Rule 54.02(1)(a) of the Rules of Civil Procedure.

c. In my view, the circumstances before me, as far as disputes concerning the contemplated “butterfly” transaction and associated application to the CRA are concerned, do not really fall within any of the remaining provisions of Rule 54.02(1) or Rule 54.02(2) of the Rules of Civil Procedure, which outline the remaining circumstances in which I have the power to direct a reference. Without limiting the generality of the foregoing, I do not think disputes relating to the butterfly transaction or associated application to the CRA relate to “the conduct of a sale”, as contemplated by Rule 54.02(2)(b) of the Rules of Civil Procedure. In particular, as I understand it, the contemplated transaction simply does not involve any “sale” of property for consideration. To the contrary, the entire purpose of the transaction is to facilitate a gratuitous transfer and tax rollover of the Farm Corporation’s assets to the three new corporations owned by the siblings, without any “sale” of the underlying property. d. Although counsel for Mr Belanger repeatedly emphasized her view and that of her client that granting of the requested relief was necessary, because the parties’ dispute could not move forward towards resolution unless and until it was entrusted to an objective decision maker capable of making binding determinations, such an outlook ignores the reality that the parties’ dispute already is in the hands of this court. Inability to direct disputes to a referee, in the absence of consent from all affected parties, does not prevent the parties from seeking substantive decisions directly from the court itself. Unfortunately, the simple reality is that requests for such relief were not the focus of the application or motion currently before me for determination.

[24] For the above reasons, the most recent application brought by Mr Belanger, (i.e., having court file no. 489/19), accordingly must be dismissed, and a formal order to that effect should issue accordingly.

[25] As that outcome coincides with the formal relief sought by Ms Olivastri’s motion, (i.e., the motion initiated by Ms Olivastri’s service of the notice of motion dated May 17, 2019), a further and separate formal order granting the relief sought in sub-paragraph (a) of that notice of motion’s prayer for relief, (requesting an order dismissing Mr Belanger’s application), would be superfluous. It will suffice if the preamble to the formally issued and entered order, dismissing Mr Belanger’s application, includes a reference to the material filed in relation to Ms Olivastri’s motion as well.

[26] In that regard, I nevertheless note my view that the formality of a responding motion was unnecessary, as the same outcome could have been achieved through simple opposition to Mr Belanger’s application after the filing of responding material. Indeed, Ms Olivastri’s motion material effectively served as her material filed in response to Mr Belanger’s application.

[27] Moreover, I agree with submissions made by Mr Belanger’s counsel that Ms Olivastri’s motion unnecessarily and inappropriately raised certain additional issues, insofar as it suggested that Ms Olivastri also was entitled to a dismissal of Mr Belanger’s application through the operation of Rules 20 and 21.01(3)(c) of the Rules of Civil Procedure. In particular:

a. For the reasons emphasized by our Court of Appeal in Maurice v. Alles, 2016 ONCA 287, at paragraphs 2 and 29-33, a motion for summary judgment is not available to adjudicate issues raised on an application initiated pursuant to Rule 14.05 of the Rules of Civil Procedure, unless the application is converted into an action. Without limiting the generality of the foregoing, the terminology employed by Rule 20 includes references to a “plaintiff”, a “defendant”, a “statement of claim” and a “statement of defence”, all of which, (as Rule 1.03 makes clear), plainly refer to an action rather than an application. Conversely, Rule 20 makes no reference to an “applicant”, a “respondent”, or a “notice of application”. Moreover, it is sound policy to avoid application of a summary process, designed to simplify and expedite matters, to what already was intended to be another summary process. There is no utility in layering one summary process onto another. b. In Maurice v. Alles, supra, our Court of Appeal was not called upon to decide whether motions brought pursuant to Rule 21 - or Rule 21.01(3) in particular - were permissible in relation to applications. In my view, however, the substantive analysis the Court of Appeal applied in that case can and should be extended to Rule 21.01(3)(c) as well. Without limiting the generality of the foregoing:

i. With its preamble, Rule 21.01(3)(c) reads as follows: “A defendant may move before a judge to have an action stayed or dismissed on the ground that … another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter”. [Emphasis added.] ii. The express wording of Rule 21.01(3)(c), referring to an “action” and to a “defendant”, (which Rule 1.03 defines as “a person against whom an action is commenced”), makes it clear that the subrule was intended to apply in the context of actions rather than applications, which the subrule does not mention. iii. There are sound policy reasons for not layering the summary motion process contemplated by Rule 21.01(3)(c) onto the already summary process of an application.

[28] In the course of her submissions, counsel for Ms Harwood noted that, where a condition precedent requires a party to take active steps to fulfil it, such as making an application for approval from a regulatory or government entity:

a. courts readily will imply a promise and corresponding obligation on the part of each party to use his or her best efforts and take all reasonable steps necessary to secure performance of a contract; b. such an implied promise and corresponding obligation may include a party using his or her best efforts to apply for and secure permission or approval from a regulatory or government entity to bring about an agreed condition precedent; and c. if a party has breached such an implied promise and obligation, courts may make a mandatory order compelling him or her to use his or her best good faith efforts to do all that is reasonably necessary to do the thing that he or she implicitly undertook to do. [21]

[29] It was suggested, in turn, that the court could use that jurisdiction in the circumstances of this case; e.g., to make a mandatory order compelling Mr Belanger to agree with submission of an application to the CRA, (i.e., for prior approval of the contemplated butterfly transaction and confirmation that it would secure the desired deferment of tax), having the form and content already agreed upon by Ms Olivastri and Ms Harwood.

[30] I accept that the court has jurisdiction to entertain requests for such relief, and to make such mandatory orders in circumstances such as these.

[31] Determining whether and how such relief may be granted also may very well be the most appropriate way of moving this protracted estate dispute forward to resolution if the parties cannot agree on more simple and expeditious ways of moving the matter forward, such as:

a. a consensual modification of the parties’ agreement to permit and require demolition of the residence and garage prior to the submission of any application to the CRA and implementation of the contemplated butterfly transaction, while expressly preserving issues relating to costs of the demolition for resolution in some fashion at some later time; and/or b. a consensual modification of the parties’ agreement whereby the parties would agree to ask the court to refer issues concerning the contemplated butterfly transaction and associated application to the CRA to Mr McGarry, while expressly confirming that any such expansion of the matters to be referred to Mr McGarry would not somehow resurrect the ability of Mr Belanger to argue that any mortgage financing received from his mother was the subject of a gift.

[32] However, as much as I would like to move this dispute forward towards resolution, I think it would be inappropriate and unfair to exercise such a jurisdiction at this time. Without limiting the generality of the foregoing:

a. Ms Harwood brought no application or motion of her own formally requesting such relief. b. Neither Mr Belanger’s application nor Ms Olivastri’s motion requested such relief, and the material and submissions tendered by their respective lawyers therefore understandably did not address such a possibility. c. An exercise of such a jurisdiction necessarily would entail consideration and determination of whether Mr Belanger’s substantive positions in relation to the butterfly transaction and corresponding application to the CRA, and his corresponding refusal to sign off on the form and content of the application agreed upon by his sisters, have been reasonable and appropriate. Yet that is precisely, (according to the submissions made by counsel at the outset of the hearing before me), what I was asked not to decide. Again, the application, motion and hearing before me were focused on whether or not Mr McGarry should be making such decisions, rather than the making of such decisions.

[33] Any determination of whether such relief is warranted accordingly should be deferred to a context where a request for such relief is made on proper notice, and the subject of appropriate preparation and argument. [22]

Conclusion

[34] For the reasons outlined above, an order shall issue formally dismissing the application brought by Mr Belanger via his notice of application dated March 6, 2019.

[35] The preamble to the formally issued and entered order in that regard nevertheless should make reference not only to the material filed in relation to that application, but also to the material filed in relation to the motion brought by Ms Olivastri via her notice of motion dated May 17, 2019.

Costs

[36] Because my decision was reserved, the parties were unable to make any submissions regarding costs, having regard to the substantive outcome of the application brought by Mr Belanger and the responding motion brought by Ms Olivastri.

[37] It is always preferable for parties to discuss and agree on cost resolutions acceptable to all concerned.

[38] However, subject to further directions of the court, (made for the reasons and in the circumstances noted below), if the parties are unable to reach an agreement on entitlement and/or quantum in relation to outstanding cost issues:

a. Ms Olivastri and Ms Harcourt each may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision; b. Mr Belanger then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of the time specified for delivery of written cost submissions by Ms Olivastri and Ms Harcourt; and c. Ms Olivastri and Ms Harcourt then may each serve and file, within one week of receiving any responding cost submissions from Mr Belanger, reply cost submissions not exceeding two pages in length.

[39] If no written cost submissions are received within four weeks of the release of this decision, there shall be no costs awarded in relation to Mr Belanger’s application or Ms Olivastri’s motion.

[40] In setting the above timetable for the delivery of written cost submissions, I am very mindful of the reality that this decision is being released at a time when Ontario and many other jurisdictions are engaged in quite extraordinary efforts to address a global pandemic, and to slow the spread of a novel coronavirus and resulting COVID-19 disease. For example:

a. As I write this, part of those efforts includes drastic reduction in the operations of the Superior Court of Justice for Ontario except for urgent matters. That reduction includes a direction that, as of March 17, 2020, all civil matters previously scheduled for hearing are suspended pending further notice, barring a direction to the contrary from the Regional Senior Justice or Local Administrative Justice. b. For the time being, the courthouse in London also remains closed, (including provisions to prevent or restrict entry by members of the public, court staff and/or members of the judiciary), in the wake of at least two people, who recently circulated in the building, testing positive for the coronavirus. c. Extraordinary arrangements are being made to have court staff, including judicial secretaries, work from home, where they are receiving and relaying communications and filings electronically.

[41] Moreover, in the current environment, where citizens are being advised to stay home and numerous business operations are closing either voluntarily or by government direction, to promote health and safety, it would be surprising if law office operations were not compromised as well, in turn limiting the ability of counsel to prepare and delivery written cost submissions.

[42] Having said all that, for the time being at least, I continue to receive written cost submissions from counsel in relation to other matters during the current COVID-19 crisis. It may be that the parties and counsel involved in this matter have a similar ability to keep matters moving forward as normally as possible despite the current restrictions and challenges.

[43] In the circumstances, the above timetable for the delivery of written cost submissions shall be subject to modification, (such as extension of the indicated deadlines), in response to written/email requests from counsel indicating, with brief reasons, why such a modification may be required. Leave permitting such direct communications to the court is hereby granted, (for the purpose of Rule 1.09 of the Rules of Civil Procedure), provided such communications are also copied to all counsel.

Justice I.F. Leach

Date: March 27, 2020

[1] The Arbitration Act, 1991, supra, section 1. [2] The Arbitration Act, 1991, supra, ss.5(1) and 5(5). [3] See, for example, Onex Corp. v. Ball Corp. (1994), 12 B.L.R. (2d) 151 (Ont.Gen.Div.), at p.158, and Canadian National Railway v. Lovat Tunnel Equipment Inc., [1999] O.J. No. 2498 (C.A.), at paragraph 20. [4] See Onex Corp. v. Ball Corp., supra, at p.160. [5] See Greenfield Ethanol Inc. v. Suncor Energy Products Inc., at paragraph 9; and Dandap Productions Inc. v. Key Brand Entertainment Inc., 2009 ONCA 135, at paragraph 32. [6] See Inforica Inc. v. CGI Information Systems and Management Consultants Inc. (2009), 2009 ONCA 642, 97 O.R. (3d) 161 (C.A.), at paragraph 14; Griffen v. Dell Canada Inc. (2010), 2010 ONCA 29, 98 O.R. (3d) 481 (C.A.), at paragraph 28; and Haas v. Gunasekaum, 2016 ONCA 744, at paragraph 10. [7] See Inforica Inc. v. CGI Information Systems and Management Consultants Inc., supra, at paragraph 14. [8] The Arbitration Act, 1991, supra, ss.1 and 6. [9] The Arbitration Act, 1991, supra, s.7(5). [10] See The Arbitration Act, 1991, supra, s.17(1), which did not exist in the 1980 or 1990 versions of Ontario’s legislation dealing with arbitrations. Such an application of the “competence-competence principle” is subject to further provisions, set forth in ss 17(8) and 17(9) of the legislation, allowing parties to thereafter apply to the court for a review, (from which no further appeal lies), of an arbitral tribunal’s ruling on an objection that the tribunal is exceeding its authority. [11] See Union des consammateurs v. Dell Computer Corp., 2007 SCC 34, [2007] 2 S.C.R. 801, at paragraphs 84-85; Seidel v. Telus Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at paragraph 139; Ciano Trading & Services C.T. & S.R.L. v. Skylink Aviation Inc., 2015 ONCA 89, at paragraph 7; Haas v. Gunasekaram, supra, at paragraph 14; and Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012, at paragraph 20. [12] The Arbitration Act, 1991, supra, s.31. [13] The Arbitration Act, 1991, supra, ss.37, 45 and 46. [14] See Rule 54.02 of the Rules of Civil Procedure. [15] See Rule 54.04 of the Rules of Civil Procedure. [16] See Rules 54.03(1) and 54.03(2) of the Rules of Civil Procedure. [17] See Rule 54.04(3)(a) of the Rules of Civil Procedure. [18] See Rule 54.05 of the Rules of Civil Procedure. [19] See Rules 54.06, 54.07, 54.08 and 54.09 of the Rules of Civil Procedure. [20] As noted above, parties are entitled to enter into arbitration agreements, which the courts are then obliged to respect and enforce, pursuant to the Arbitration Act, 1991, supra. Parties require no permission of the court to commit a matter to arbitration. [21] See Dynamic Transport Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R. 1072, at pp.1082-1086, and the numerous authorities cited therein. [22] Nothing in these reasons should be taken to suggest that such relief would or should be granted vis-à-vis Mr Belanger, at the formal request of Ms Harcourt and/or Ms Olivastri. Nor is anything in these reasons meant to suggest that Mr Belanger would not be able to advance his own formal request for that jurisdiction of the court to be exercised in his favour; i.e., through the making of mandatory orders compelling his sisters to co-operate in the making of a submission to the CRA in the form and/or manner suggested by Mr Belanger.