COURT FILE NO.: 01-2497/15

DATE: 20220513

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF the Estate of Gladys Sau Sim Li, deceased

RE: ELLIOT LI, Applicant and Responding Party

AND:

HOWARD KEITH JURIANSZ, personally, and as Estate trustee for the late GALDYS SAU SIM LI and JURIANSZ & LI, Respondents and Moving Parties

BEFORE: Cavanagh J.

COUNSEL: Vitali Luchko, for the Respondents and Moving Parties

Harvey J. Ash, for the Applicant and Responding Party

HEARD: May 12, 2022

ENDORSEMENT

Introduction

[1] The moving party, Howard Keith Juriansz, was appointed as Estate Trustee for the Estate of Gladys Sau Sim Li in September 2015. The Estate has only one significant asset, a condominium unit. The responding party, Elliot Li, is the deceased’s son and the sole beneficiary of the residue of the Estate. Mr. Li lives in the condominium unit.

[2] Mr. Juriansz has decided to sell the condominium unit in order to pay debts owed by the Estate because there are no other assets available to do so and because there are ongoing expenses of the condominium unit which must be paid. The balance of the proceeds of sale, after payment of debts of the Estate and proper expenses, will be paid to Mr. Li as residual beneficiary.

[3] Mr. Juriansz moves for an order for possession of the condominium unit. Mr. Li opposes the motion.

[4] In the within application that was commenced in December 2017, Mr. Li seeks damages and other relief against Mr. Juriansz in his capacity as Estate Trustee, in his personal capacity, and against his law firm. Mr. Li asks that Mr. Juriansz’ motion be dismissed or, alternatively, stayed until the hearing of his application.

[5] For the following reasons, I grant the motion for an order for possession of the condominium unit.

Factual Background

[6] The Applicant, Elliot Li, is the son of the deceased, Gladys Sau Sim Li (“Gladys”).

[7] Gladys died on January 15, 2009. She was survived by only one of her children, Mr. Li. Gladys’ husband predeceased her in 1985. After her husband’s death, Gladys lived with her son, Mr. Li, in a condominium at 10 Tangreen Court, Toronto.

[8] Pursuant to Gladys’ last Will dated May 7, 2002, Mr. Li was named as her estate trustee and the sole beneficiary of her estate.

[9] Between November 2013 and January 2015, Mr. Li did not pay the condominium common expenses and received notices from the lawyers for York Condominium Corporation No. 366 (“YCC 366”) demanding payment and threatening to sell the condominium unit.

[10] In May 2015, the law office of Mr. Juriansz was contacted by a friend or associate of Mr. Li who sought assistance from Mr. Juriansz’ firm in representing Mr. Li in connection with his dealings with YCC 366. Mr. Juriansz’ firm had drafted Gladys’ last Will.

[11] Mr. Juriansz evidence is that he was provided with correspondence and documents from the friend which disclosed the following information:

a. On June 30, 2014, YCC 366 registered a condominium lien on title to the condominium unit for unpaid expenses.

b. On November 20, 2014, YCC 366 issued a Notice of Sale with respect to the condominium unit.

c. On January 23, 2015, YCC 366 commenced an action against the deceased for possession of the condominium unit and payment of common expense arrears. YCC 366 did not know that the deceased had died almost 6 years earlier.

d. On April 14, 2015, YCC 366 obtained a default judgment against the deceased.

e. On April 15, 2015, YCC 366 demanded payment in full of the judgment. Further, YCC 366 required rectification of the hazardous and unsanitary conditions of the condominium unit.

f. On April 30, 2015, YCC 366 obtained an order granting leave to obtain a Writ of Possession.

g. On May 14, 2015, a lawyer acting on behalf of Mr. Li advised YCC 366 that Mr. Li was arranging for alternate accommodations and hoped to do so prior to YCC 366 obtaining judgment for possession so that he could deliver up vacant possession without any further costs.

[12] Mr. Juriansz met with Mr. Li in late May 2015. Prior to meeting with him, Mr. Juriansz reviewed Gladys’ Will.

[13] Mr. Juriansz evidence is that during his meeting with Mr. Li, he was advised by Mr. Li that:

a. Gladys resided at the condominium unit with Mr. Li until her death. Mr. Li continued to reside in the condominium unit after her death.

b. Mr. Li was 67 years old and had been unemployed for most of his adult life. He had worked in a restaurant for a couple of years approximately 30 years previously.

c. Mr. Li was agreeable to selling the condominium unit in order to pay the default judgment, as he did not have funds available to do so. He was receiving some form of social assistance at that time, of approximately $1,200 or $1,300 per month.

d. Mr. Li had not taken steps to probate his mother’s Estate since the date of her death. He had not told anyone at the management office of YCC 366 of his mother’s death.

e. Gladys’ husband had predeceased her in 1985.

f. The alternate estate trustee named by Gladys in her Will had predeceased Gladys.

[14] Mr. Juriansz’ evidence is that he reviewed Mr. Li’s options with him. He advised that Mr. Li could did nothing, which would result in YCC 366 selling the condominium unit and paying to Gladys’ Estate any excess sale proceeds after payment of their lien, legal fees and disbursements. Mr. Juriansz advised Mr. Li that he would have no control over the sale price or the deductions made to the sale proceeds. He also advised Mr. Li of the necessity of appointing an estate trustee of Gladys’ Estate in order to actually receive the balance of any net sale proceeds once YCC 366 sold the condominium unit.

[15] Mr. Juriansz discussed with Mr. Li that, based on his review of the documents, his opinion was that YCC 366 could not enforce the condominium lien because the action had been commenced against Gladys, a deceased person, personally, and, as such, it was not properly constituted. Mr. Juriansz advised Mr. Li that advancing this position would provide him with a window of time within which to relocate but would also require that Mr. Li move, immediately, to seek an appointment as Estate Trustee.

[16] Mr. Juriansz’ evidence is that he recommended to Mr. Li that he immediately apply for a Certificate of Appointment of Estate Trustee. His evidence is that Mr. Li did not want to do so and advised that he felt that he was not capable of acting as Executor and Trustee of Gladys’ Estate. Mr. Juriansz explained to Mr. Li that he would assist him in all respects relating to the management of his late mother’s Estate. However, Mr. Li was adamant that he felt he could not act in this capacity.

[17] Mr. Juriansz evidence is that he explained to Mr. Li that he could consent to the appointment of an alternate Trustee not specifically named in Gladys’ Will. However, Mr. Li was unable to provide Mr. Juriansz with the name of any family friend or relative who would be willing to act as Estate Trustee.

[18] Mr. Juriansz’ evidence is that Mr. Li asked if Mr. Juriansz would be willing to act as Estate Trustee. He agreed to assist Mr. Li and act as Estate Trustee for the purposes of potentially arranging funding to pay out the condominium lien and thereafter managing the sale process of the condominium unit, which would provide Mr. Li with the time he needed to arrange alternate housing. Mr. Li instructed him to take the necessary steps to be appointed as Estate Trustee of Gladys’ Estate.

[19] Mr. Juriansz’ evidence is that he explained in great detail what his appointment as Estate Trustee would require. His evidence is that Mr. Li understood that he would be required to renounce his appointment as Estate Trustee and consent to Mr. Juriansz’ appointment. Mr. Juriansz’ evidence is that he specifically explained to Mr. Li that, with his assistance, he was certain that Mr. Li was capable of acting as Estate Trustee but that Mr. Li remained adamant that he did not wish to do so and retained Mr. Juriansz to specifically undertake an application for his appointment as Estate Trustee.

[20] Mr. Li did not deliver an affidavit responding to Mr. Juriansz affidavit. In opposition to this motion, he relies on his affidavit sworn December 11, 2017 in support of the application. In this affidavit, Mr. Li states that he went to see Mr. Juriansz in or about May 2015 and this first meeting was with Mr. Juriansz and another lawyer in his firm, Ronald Lachmansingh. Mr. Li states that they suggested that their firm probate the estate and sell the condominium and he responded that he did not want to sell the condominium and suggested they help him get financing. Mr. Li’s evidence is that he was told that he would have to renounce as estate trustee in favour of Mr. Juriansz and that they would have to probate the estate. Mr. Li’s evidence is that Mr. Juriansz did not indicate that probate was not necessary or suggest transferring the property into his name and then obtaining a reverse mortgage.

[21] Mr. Li’s evidence is that at a subsequent meeting with Mr. Lachmansingh, he asked how Mr. Li would pay the condominium arrears and Mr. Li suggested obtaining a reverse mortgage after the property was transferred into his name. Mr Li states that this suggestion was dismissed by Mr. Lachmansingh who recommended a conventional mortgage which would have a lower interest rate. Mr. Li denies that either Mr. Juriansz or Mr. Lachmansingh suggested that he would have to vacate the condominium.

[22] Mr. Li’s evidence is that in a telephone call from Mr. Lachmansingh, he indicated that it would be better if he assigned control of the estate to his firm and that Mr. Juriansz could be appointed as estate trustee and act as a shield between him and the lawyers for the condominium corporation. Mr. Li’s evidence is that neither Mr. Juriansz nor Mr. Lachmansingh advised him that once Mr. Juriansz took over as estate trustee, he would have control of the condominium and would no longer take instructions from Mr. Li. Mr. Li’s evidence is that “[o]n that understanding, I signed a renunciation on May 28, 2015”.

[23] On June 8, 2015, counsel for YCC 366 forwarded to Mr. Juriansz’ office photographs of the condominium unit as of the end of March 2015 and stated that YCC 366 has a concern about safety because Mr. Li’s hoarding posed a health and fire risk. A law clerk employed by Mr. Juriansz’ law firm attended on June 12, 2015 at the condominium unit to review with Mr. Li the documents that had been prepared relating to Mr. Juriansz’ application for a Certificate of Appointment as Estate Trustee of Gladys’ estate. Mr. Li duly executed the required documents. The law clerk advised Mr. Juriansz after this meeting that the condominium unit appeared on inhabitable due to hoarding.

[24] On June 18, 2015, YCC 366 obtained a writ of possession against the condominium unit. There were communications between Mr. Juriansz’ law office and legal counsel for YCC 366 which resulted in YCC 366 agreeing to temporarily refrain from evicting Mr. Li subject to certain conditions. By letter sent on July 28, 2015, counsel for YCC 366 advised that Mr. Li was given until August 15, 2015 to rectify the hazardous and unsanitary conditions of condominium unit, failing which YCC 366 would do so and the associated costs would be secured by a lien. Mr. Juriansz arranged for a professional junk removal company to remove garbage from the condominium unit and he arranged for extensive cleaning of the unit.

[25] On September 22, 2015, a Certificate of Appointment of Estate Trustee with a Will was issued appointing Mr. Juriansz as Estate Trustee of Gladys’ Estate.

[26] Mr. Juriansz made efforts to arrange a mortgage against the condominium unit to pay out the lien. Because of his ownership of the condominium unit as Estate Trustee, he was only able to obtain a mortgage from a private lender rather than an institutional lender. Mr. Juriansz obtained a mortgage from a private lender secured against the condominium unit in the amount of $130,000 on February 1, 2016. The proceeds of the mortgage advance were used to, among other things, pay and discharge the condominium lien. The condominium lien was discharged on February 2, 2016.

[27] By letter dated September 27, 2016, counsel for YCC 366 advised that it had received numerous complaints of unsanitary odours, garbage and debris found within the condominium unit and demanded that the situation be rectified within 7 days. Mr. Juriansz retained a contractor with experience in dealing with hoarding issues and, on October 3, 4 and 5, 2016, an extreme cleaning of the condominium unit was conducted.

[28] Mr. Juriansz’ evidence is that following his appointment as Estate Trustee in the fall of 2015, it was intended that Mr. Li would begin looking for home to which to relocate, but this did not happen. Mr. Juriansz’ evidence is that by the fall of 2016, it had become apparent that Mr. Li was a compulsive hoarder and that he was unable to secure alternate housing without assistance. Mr. Juriansz instructed representatives of his office to explore treatment and care options for Mr. Li and to attempt to assist him in locating alternate accommodations in order to allow Mr. Juriansz to list and sell the condominium unit. In his affidavit, he explains the steps that he took to do so.

[29] Mr. Juriansz provides evidence of the following information provided by his law partner, Mr. Lachmansingh, with respect to a conversation with Mr. Li on September 18, 2017:

a. Mr. Lachmansingh advised Mr. Li that the mortgage was coming due early in the following year and the condominium unit will have to be sold to pay it off.

b. Mr. Lachmansingh noted that Mr. Juriansz had been paying from his own personal funds the common expenses and the mortgage payments, and he had also paid for the extreme cleaning services relating to the condominium unit.

c. Mr. Lachmansingh asked Mr. Li to take over payment of the common expenses until the condominium unit was sold, but Mr. Li responded that he did not have the money to do so.

d. Mr. Lachmansingh asked Mr. Li why he could not pay the common expenses out of his pension income, but Mr. Li responded that he had been paying the property taxes for the condominium unit and that Mr. Juriansz should continue to pay the common expenses. Mr. Lachmansingh could not persuade him otherwise.

e. Mr. Lachmansingh told Mr. Li that he needed to think about where he wanted to live, and Mr. Li responded that he would like to live at a particular senior citizen’s home but that it probably had a long waiting list.

f. Mr. Lachmansingh told Mr. Li that he needed to consider a place to move into temporarily until he could get something more long-term, and Mr. Li responded that he would need to put some of his possessions into storage.

[30] October 11, 2017, Mr. Juriansz met with Mr. Li at his office, together with Mr. Lachmansingh and a student-at-law. Mr. Juriansz advised Mr. Li that he could not continue to carry the condominium unit and that Mr. Li would have to make concerted efforts to locate alternate accommodation as soon as possible. Mr. Juriansz told Mr. Li that the student-at-law would search for new accommodation for him and take him to view prospective rental accommodations so that he could have input into where he wanted to live. Mr. Juriansz’ evidence is that Mr. Li agreed with this proposal.

[31] Mr. Juriansz describes in his affidavit the attempts that were made to arrange for alternate accommodation for Mr. Li. Ultimately, these attempts were unsuccessful.

[32] On October 30, 2017, Mr. Juriansz received an email from a lawyer, Mr. Li’s lawyer on this motion, who advised that he was in the process of being retained by Mr. Li and that all further correspondence should be directed to him.

[33] In December 2017, Mr. Li commenced the within application for directions against Mr. Juriansz personally and in his capacity as Estate Trustee for the Estate, and against his law firm.

[34] Mr. Li’s application was initially returnable at a 9:30 a.m. scheduling an appointment on January 22, 2018 in Estates Court. On that day, Justice Dunphy made the following endorsement:

This estate has been ongoing since 2009. There is only one beneficiary, the Applicant. There is no justification for this estate to be in existence this long or for a legal dispute. If Mr. Li has competency issues, there is an Act to deal with that and a Public Guardian. Adjourned sine die in the expectation no further appointments will be needed [emphasis in original].

[35] The term of the private mortgage that had been taken out in 2016 expired on February 1, 2018. Mr. Juriansz arranged for the mortgage to be paid out from the proceeds of a further private mortgage in the amount of $180,000. The term of this mortgage was due to expire on March 1, 2019. Mr. Juriansz arrange for the mortgage to be paid out from the proceeds of a further private mortgage he obtained from the same lender, secured against the condominium unit, in the amount of $190,000. The term of this mortgage expired on September 1, 2019. Mr. Juriansz arrange for the mortgage to be paid out from the proceeds of a further private mortgage in the amount of $200,000. The term of this mortgage expired on October 1, 2020. Power of sale proceedings were commenced. Mr. Juriansz arranged for this mortgage to be paid out from the proceeds of a new mortgage in the amount of $215,482.04 that he obtained from a company he owns and which he used to pay out the existing mortgage with his personal funds.

[36] This motion was brought by Notice of Motion dated March 22, 2022.

Analysis

[37] Mr. Juriansz’ motion is for an order for possession of the condominium unit and an order granting leave for issuance of a writ of possession.

[38] Mr. Li opposes this motion. Mr. Li’s application is not before me today for a hearing, although the fact that this application is pending is part of the record, and, in opposition to this motion, Mr. Li relies on his affidavit sworn in support of his application.

[39] In Mr. Li’s factum, he asks that the motion be dismissed and that title to the condominium unit be transferred to him no later than May 31, 2022. Mr. Li asks that Mr. Juriansz be enjoined from seeking a writ of possession and that Mr. Juriansz’ company be enjoined from enforcing its mortgage until further order of the Court. Mr. Li asks for an order that Mr. Juriansz be required to commence an application to pass accounts no later than May 31, 2022 and that the remainder of Mr. Li’s application (including his claims for damages for misfeasance and negligence) be adjourned sine die until completion of the passing of accounts.

Should this motion be stayed pending the outcome of the application?

[40] At the hearing of this motion, Mr. Li, in the alternative to his request that the motion be dismissed, asked that it be stayed until after the hearing of his application.

[41] Mr. Juriansz brings his motion in his capacity as Estate Trustee of Gladys’ Estate. There is no dispute that Mr. Juriansz was appointed as Estate Trustee of Gladys’ Estate on September 22, 2015. Since his appointment, Mr. Juriansz has been responsible for discharging his duties as Estate Trustee. This appointment was made with the consent of Mr. Li, who renounced his appointment as Estate Trustee.

[42] Mr. Li’s application was commenced in December 2017. Other than the first appearance before Dunphy J. that resulted in an adjournment sine die, Mr. Li has not taken any steps to advance the application. I note that in his application, Mr. Li seeks an order, in the alternative, that “the certificate of appointment be returned to the court”. Mr. Li has not taken any steps to seek adjudication of this claim and obtain an order removing Mr. Juriansz as Estate Trustee over the more than six years that have passed since Mr. Juriansz was appointed and the more than four years that have passed since Mr. Li commenced the application.

[43] Mr. Li is claiming damages from Mr. Juriansz as well as other monetary remedies including repayment of fees charged to the Estate. These claims are not before me. However, in my view, it would be unjust to stay Mr. Juriansz’ motion for possession of the condominium unit in these circumstances, where Mr. Li has not advanced his application and, during the last number of years, Mr. Juriansz has acted as Estate Trustee to secure mortgage financing to pay for expenses of the condominium unit, including expending his own money. If Mr. Li objected to Mr. Juriansz continuing to discharge his duties as Estate Trustee, it was incumbent on Mr. Li to take steps to advance his application and not sit back while Mr. Juriansz incurred expenses for the benefit of the Estate.

[44] I decline to stay this motion pending the hearing of Mr. Li’s application.

Is Mr. Juriansz, as Estate Trustee, entitled to an order for possession of the condominium unit?

[45] Mr. Li submits that three years after his mother’s death, he, as the estate trustee named in his mother’s Will, had authority to transfer the condominium unit to himself and avoid the need for probate. Mr. Li submits that he received incorrect advice from Mr. Juriansz that resulted in him losing control of the Estate. Mr. Li submits that the actions taken by Mr. Juriansz and his office amounted to misfeasance or negligence and they should not be entitled to profit from their errors.

[46] I do not find it necessary to make findings where there are conflicts between the evidence given by Mr. Juriansz in his affidavit and the evidence given by Mr. Li in his affidavit. Neither witness was cross-examined. Where there are no conflicts between Mr. Juriansz’ evidence and the evidence given by Mr. Li, I accept Mr. Juriansz’ evidence. I am not adjudicating Mr. Li’s claims for damages for negligence or other monetary remedies. If Mr. Li is successful in proving his claim in negligence, he will have a remedy in damages.

[47] The evidence is unchallenged that a Certificate of Appointment of Estate Trustee with a Will was issued by the Court to Mr. Juriansz on September 22, 2015 and that this Certificate has not been set aside.

[48] Mr. Li does not have a beneficial interest in the condominium unit under the Will. He has a beneficial interest in the residue of the Estate. As a result, s. 9 of the Estate Administration Act did not operate to vest the condominium unit in Mr. Li. See Smith v. Smith, 2022 ONSC 63, at paras. 22-29.

[49] For the purposes of this motion, therefore, Mr. Juriansz is the duly appointed Trustee of Gladys’ Estate and, upon his appointment, the condominium unit vested in him in this capacity.

[50] Mr. Juriansz submits that Mr. Li is not a tenant of the condominium unit and has no rights in this capacity to the continued occupation of the condominium unit. I accept this submission.

[51] Under Article VIII of Gladys’ Will, the Estate Trustees are authorized to use their discretion in the realization of the estate to convert into money any part of the estate not consisting of money at such times and in such manner as the Estate Trustees in their uncontrolled discretion decide upon, or to postpone such conversion for such length of time as they may think best. Under the Will, the Estate Trustees are empowered to mortgage or dispose of any part of the Estate.

[52] The Estate has debts that have accrued during the administration of the Estate. In addition, there will be continuing expenses that must be paid for the benefit of the Estate such as common expenses of the condominium unit. The only asset of the Estate that is available to pay the debts of the Estate and to fund ongoing expenses is the condominium unit. Mr. Juriansz, as Estate Trustee, cannot be expected to continue to pay the ongoing expenses indefinitely.

[53] Mr. Li submits that Mr. Juriansz is in a position where his interest as owner of the shares of the private company that holds a mortgage on the condominium unit conflicts with his duties as Estate Trustee and that this motion is being brought by Mr. Juriansz for his own personal gain and in breach of his fiduciary duty to the Estate. Mr. Li also submits that this motion is premature as no notice of sale has been issued by the mortgagee against the Estate.

[54] I do not agree that the fact that Mr. Juriansz, through his company, advanced mortgage funds to refinance the private mortgage that had fallen due should disqualify him from acting as Estate Trustee to seek an order for possession of the condominium unit to facilitate a sale. If he had not exercised his discretion as Estate Trustee to do so, the private mortgagee would have taken proceedings to sell the condominium unit. In these circumstances, Mr. Li has not shown that Mr. Juriansz should be disqualified from seeking an order for possession of the condominium unit.

[55] There is no other source of funds available to the Estate to fund the ongoing expenses associated with the condominium unit or to pay the debts of the Estate. Mr. Juriansz is acting within the scope of his discretion and powers under the Will by deciding to sell the condominium unit and seeking an order for possession of the condominium unit for purpose of facilitating a sale.

[56] I am satisfied that Mr. Juriansz, as Estate Trustee of Gladys’ Estate, is entitled to an order for possession of the condominium unit for the purpose of facilitating the sale of the condominium unit.

[57] I adjourn the portion of Mr. Juriansz’ motion for leave to issue a writ of possession in order to allow Mr. Li some time to find alternative accommodations and to surrender possession of the condominium unit.

Disposition

[58] For these reasons, an order for possession shall issue in favour of Mr. Juriansz as Estate Trustee of the Estate of Gladys Sau Sim Li, deceased, of the property municipally known as 10 Tangreen Court, Suite 2307, Toronto, Ontario, M2M 4B9 bearing the legal description set out in Schedule “A” to the Notice of Motion.

[59] If possession of the condominium unit is not delivered up by Mr. Li within 45 days of the date of this Order, Mr. Juriansz may renew the portion of his motion that was adjourned and seek from me, on notice to Mr. Li, an order for leave to issue a writ of possession.

[60] If the parties are unable to resolve costs, Mr. Juriansz may deliver written submissions (not longer than 3 pages, excluding costs outline) within 10 days. Mr. Li may deliver responding submissions (also not exceeding 3 pages, excluding costs outline) within 10 days thereafter. Mr. Juriansz may deliver brief reply submissions (1 page), if so advised, within 5 days thereafter.

Cavanagh J.

Date: May 13, 2022