Court File and Parties

COURT FILE NO.: CV-21-00670160-00ES DATE: 20220606

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF ELIAS GEFEN

TORONTO ESTATES LIST

RE: Harry Gefen, Applicant

AND:

Henia Gefen in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen and Harvey Gefen, Respondents

BEFORE: C. Gilmore, J.

COUNSEL: Aaron Blumenfeld and Aidan Fishman, Counsel for the Applicant Ronald Moldaver, Q.C. for Henia Gefen in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen. William F. Kelly for Harvey Gefen.

HEARD: In Writing

ENDORSEMENT

INTRODUCTION

[1] This motion is being heard in writing as per my endorsement as Case Management judge dated March 28, 2022. In the main Application, the Applicant Harry Gefen (the “Applicant” or “Harry”) seeks to pass over the appointment his mother, Henia Gefen (“Henia”), as the sole Estate Trustee of his father’s estate (the “Estate” or the “Elias Gefen Estate”) as well as the appointments of him and his brother, the Respondent Harvey Gefen (“Harvey”), as alternate Estate Trustees. The Applicant seeks an Order for the continuation of the appointment of the Estate Trustee During Litigation (“ETDL”), Mr. Ronald Rutman, pending the hearing of this Application or payment of all outstanding costs awards owed by the Elias Gefen Estate, whichever occurs first.

[2] In the course of this Application, the Applicant sought to examine his mother out of court pursuant to r. 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). His mother refused to be examined.

[3] On January 19, 2022, I ordered that Henia be examined after a motion heard in writing. Leave to appeal to Divisional Court was refused. Henia was examined on February 22, 2022. Following the examination of Henia, the Applicant had concerns about Henia and what he alleged to be illogical and nonsensical responses to questions. It is the Applicant’s view that Henia’s examination raised issues of her capacity to instruct counsel and/or manage property.

[4] The Applicant therefore seeks an Order for Henia to attend before a health practitioner pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an assessment of her capacity to instruct counsel and manage property. Specifically, the Applicant seeks to have his mother assessed by Rena Postoff, a Yiddish speaking qualified capacity assessor.

[5] In the event that Henia is found to lack capacity, the Applicant seeks to appoint a litigation guardian or guardian for property on behalf of Henia.

[6] In addition, the Applicant seeks an Order for interim relief for the continuation of the January 27, 2015 Newbould Order appointing Ronald Rutman as the ETDL (“Newbould Order”). On April 29, 2022, Harry filed an application for leave to appeal to the Supreme Court of Canada in relation to the appeal of the Kimmel decision released on March 2, 2022. If that application is dismissed, the ETDL’s mandate will end and Henia will become the Estate Trustee.

[7] The Orders sought by the Applicant are opposed. The Respondents maintain that Henia is perfectly capable of carrying out her duties as Estate Trustee and that the transcript and video of the examination confirm this to be the case. There is no reason for the ETDL to continue in its role once all avenues of appeal of the March 2, 2022 Court of Appeal judgment have been exhausted. Harry does not have standing to request either a continuation of the ETDL mandate or the appointment of a new ETDL in this Application. In any event, sale proceeds from the sale of both the Kingston Road and the Eastown Plaza properties have been ordered to be paid into Court. Those net proceeds will be more than sufficient to satisfy all of the outstanding costs awards.

[8] For the reasons set out below, I find that it is necessary for Henia to undergo a capacity assessment pursuant to s. 105 of the Court of Justice Act. Further, the ETDL must remain in place pending the completion of the capacity assessment and the hearing of the within Application.

THE POSITIONS OF THE PARTIES

The Moving Party

[9] This Application emanates from litigation which has been going since 2013 (Gefen v. Gaertner, CV-14-00510700ES). In the October 17, 2019 judgment of Justice Kimmel, the Estate was ordered to pay over $3M in adverse costs of which $1,031,048.67 is owed to Harry plus interest at 3%. Of the costs owed, Henia and Harvey owe approximately $334,402 personally. In addition to the aforementioned costs, the Estate owes the ETDL over $3M in costs and fees.

[10] Harry’s brother, Yehuda Gefen (“Yehuda”), is deceased. Yehuda’s Estate Trustee, Lucia Saunders, supports Harry’s request for a capacity assessment and continuation of Mr. Rutman as the ETDL. The Yehuda Estate is owed $1,320,070.20 in costs awards from the Estate, Henia, the Estate and Henia jointly, and the Estate, Harvey and Henia jointly.

[11] The Applicant is very concerned about his mother taking over as Estate Trustee if the appointment of the ETDL ends. Henia is 99 years old, deaf and blind, and speaks mostly Yiddish. She does not know how to use a computer and has mobility issues. The Applicant has specific concerns about his mother acting as Estate Trustee as set out below:

a. Until recently, Henia and Harvey were both represented by Mr. Moldaver. The Applicant has had a continuing concern that Henia has not received independent legal advice in relation to the within Application.

b. Henia has been described by her own doctor as “elderly and frail” and suffering from multiple medical conditions.

c. Harvey was very concerned about the way in which Mr. Moldaver treated his mother at the examination on February 22, 2022. Mr. Moldaver refused many basic questions about the within Application and yelled at his client in a forceful manner.

d. Given the outstanding costs owed to Harvey (and other Estate creditors) he is concerned that the answers given by his mother at the examination demonstrate that she does not understand the amount of debt owed by the Estate nor has she given an explanation as to why the millions of dollars in court costs owed by the Estate have not been paid to date.

e. The Applicant denies that Mr. Cedarbaum (the Yiddish interpreter at the examination) translated the word “creditor” as “beneficiary.” No expert evidence has been produced by the Respondents on this critical point.

f. Given Henia’s answers at her examination, her confusion, and her clear inability to fully understand her duties and role as an Estate Trustee, a capacity assessment should be conducted by a neutral, qualified, Yiddish-speaking capacity assessor to confirm that Henia has the capacity to instruct counsel and manage property.

[12] In the event that Henia assumes the role of Estate Trustee, the Applicant is concerned about the uncertainty, confusion and delay which would be caused. Further, the Applicant has grave concerns about Harvey and his influence over their mother. The Applicant reminds the Court that Justice Kimmel adjudged Harvey to have unconsciously procured over $8M of Henia’s assets through predatory transactions which were voided by the Court. Henia is vulnerable to Harvey. Harvey is hostile towards Harry. Harry’s position is that the risks to him are extreme if his mother becomes the Estate Trustee of the Elias Gefen Estate.

[13] For example, Harvey attempted to sell three commercial properties in 2020, in which the Estate held an interest, without notice to the ETDL and in defiance of the Newbould Order. During the February 22, 2022 examination, Henia testified that she had no knowledge of Harvey’s attempts to sell the properties.

[14] The ETDL is actively trying to sell two valuable properties in which the Estate has an interest (Kingston Road and the Eastown Plaza). Terms of sale have been prescribed but if Henia becomes Estate Trustee, the Applicant is concerned there will be further delay with the sale and no guarantee as to how the proceeds will be distributed.

[15] The Applicant’s position is that Henia does not have the capacity to act as Estate Trustee. It is not possible for the Applicant and Harvey to act as the alternate Estate Trustees given the long history of litigation in this matter and their polarized views.

[16] The Estate of Yehuda Gefen supports the Applicant’s position. The Estate of Yehuda Gefen is owed significant costs by the Estate, Henia and Harvey. The Estate Trustee of Yehuda Gefen’s Estate does not believe that Henia has the ability to manage the Estate and believes that her health has worsened since the trial.

The Responding Parties – Henia and Harvey Gefen

[17] Henia argues that there is no reason to remove her as Estate Trustee once the ETDL’s mandate has expired. The sale Orders in relation to Kingston Road and the Eastown Plaza require that sale proceeds of the Estate’s share of those properties be paid into Court. There will be more than enough from those sale proceeds to pay all creditors including Harvey, Harry and the ETDL. Henia cannot prevent such payment. Further, the creditors are free to use any remedies they see fit to enforce the amounts owed to them. It will not be possible to sell any of the properties “surreptitiously” given the outstanding Court Orders.

[18] Henia submits that she is perfectly capable of hiring appropriate counsel and accountants as needed. While she has heart, sight and hearing concerns, she was able to adequately answer questions put to her on examination. The interpreter used the wrong word when translating the word “creditor” into Yiddish. He used the word “beneficiary.” Of course, Henia answered that she was the only one, as that is true and correct.

[19] It is clear from the videotaped examination that Henia does not suffer from either dementia or any serious cognitive disorders. The fact that she is passionate about her dislike of Harry and how he treated her and her late husband does not mean she lacks capacity. Henia has been doing her own banking for years. Harvey has her Power of Attorney but it has never been invoked. It has not been necessary to do so.

[20] The only question that is of concern to Harry is whether Henia has the capacity to pay creditors. She already told opposing counsel during her examination that she would do so. This motion is therefore a waste of the Court’s time and should be dismissed.

[21] Harvey submits that although he holds his mother’s Power of Attorney for Property, he has never had to use it. His mother is capable of making her own personal and business decisions and perfectly capable of retaining professionals when needed. His mother lives in her own apartment and is assisted by a caregiver. Harry does not see his mother and is therefore not in a position to give evidence about her capacity. Harvey adds that his mother underwent a capacity assessment in 2011 by Dr. Cappuccio and a later assessment by Dr. Kenneth Shulman. Both found that Henia was able to manage her own property.

[22] Harvey is confident Henia will pay all of the Estate’s creditors when authorized to do so. Harvey deposed that he speaks Yiddish fluently and insists that there was a miscommunication with the interpreter in that when Mr. Blumenfeld asked her who the creditors of the Estate were, it was translated using the word “yirrishe” which means beneficiaries and not creditor. Naturally, his mother answered that she was the only beneficiary. His mother is well aware of who the Estate creditors are. She told Mr. Blumenfeld that she would sell everything she had in order to pay them if need be.

[23] On the second issue, Henia’s position is that Harry has no standing to bring either the Application or the motion to continue the ETDL when their mandate ends. Harry is simply a creditor who may register a Writ of Execution and enforce his judgment as and how he pleases.

[24] Harvey submits that the ETDL has not been objective in carrying out its duties, has been paid over $6M since their appointment in 2015 and continues to incur unnecessary costs. The ETDL has unlawfully registered a mortgage against the Estate properties. This has interfered detrimentally with the property rights and interests of the owners.

[25] Further, it is the ETDL who has refused to pay creditors, not Henia. The ETDL could have mortgaged or sold the subject properties and paid out the creditors years ago. Two of the commercial properties are for sale. Once sold, there will be more than enough from available proceeds to pay all of the creditors. Continuing with the ETDL’s appointment is therefore not necessary and prejudicial to the property owners and beneficiary of the Estate.

[26] Harvey alleges that the ETDL has preferred Harry’s interests over other creditors, and they are, therefore, in a position of conflict and no longer able to be objective in carrying out their duties.

ANALYSIS AND RULING

A. The Capacity Assessment Issue

[27] Given the contentious nature of this proceeding and Henia’s counsel’s insistence that his client was fully able to resume the task of Estate Trustee, I took the time to view the entire February 22, 2022 examination which had been videotaped. The examination lasted over three hours.

[28] While not qualified to make any form of assessment, that does not prevent the Court from making some basic observations about the examination as a factual basis for finding that a capacity assessment is required.

[29] Henia is 98 or 99 years old. Her age was never exactly established but the difference between 98 and 99 is inconsequential at this point. During the examination, the following was clear:

a. Many of Henia’s answers were non-responsive. She answered a completely different question or no question at all. Rather, she went into lengthy descriptions about irrelevant matters such as her late husband’s heart attack and circumstances surrounding that event. At one point she talked about someone cleaning out her bank account in 2004. She implied that Harry was the one who cleaned out her bank account, yet Harry has never held a Power of Attorney for his mother.

b. Henia is reliant on others (mostly Harvey it seems) to advise her and carry out her instructions. This is clearly because she requires such help. She does not drive and must rely on others for banking and other necessities. It is evident that she cannot act independently.

c. She was unaware of basic estate related issues such as the amount of debt owed by the Estate, who was managing the commercial properties and how she would pay the debt owed by the Estate. Her counsel tried to soften this by repeating on the record several times that since the ETDL had been administering the Estate for many years, it was easy to understand how Henia may lack such knowledge. However, it was clear she did not have an understanding of what was contained in the Kimmel judgment (since upheld by the Court of Appeal) or any real sense of the costs awards outstanding against the Estate or against her personally.

d. She was quite consumed by how much Mr. Blumenfeld was being paid by Harry and his partner Susan Drummond. She asked this question on at least five occasions in response to an unrelated question.

e. Mr. Moldaver was quite abrupt with Henia and at times raised his voice with her. He explained this was so she could hear him. To an observer it simply appeared as if he was being unnecessarily loud and forceful towards her. It is unclear as to the effect that this conduct had on Henia’s answers. It would be important to have Henia’s input in a calmer environment. An assessment would provide such an environment.

f. Henia became tired and unfocused after a period of time. That is not surprising given her age. She often made statements in which she said she might have known a particular fact at one time or another but could no longer remember it.

g. There were large gaps in Henia’s testimony because her counsel refused to permit her to answer some basic questions (such as what the within Application is about). While this Court is not tasked with dealing with ruling on the many refusals given at this examination, suffice it to say that such refusals were extensive and resulted in an imperfect record with respect to Henia’s knowledge of some basic issues in this litigation.

h. While a Yiddish interpreter was present, Henia started almost all of her answers in English and had to be constantly reminded by the interpreter to answer in Yiddish. This appeared to cause her some stress and confusion during the examination.

i. There was a great deal of affidavit evidence about the word “yirrishe” in Yiddish and whether it meant creditor or beneficiary. I have not been provided with any expert evidence in this regard, only Harvey’s interpretation that Henia meant beneficiary and not creditor in her answer. If the Applicant is correct, Henia’s understanding is that she is the only creditor of the Estate (which is untrue). If Harvey and Henia are correct, Henia was simply confirming that she is the sole beneficiary of the Estate. The Court is left with a concern as to whether Henia truly understands who the creditors of the Estate are. I note that there was no affidavit from Henia in this matter as to her own understanding on this critical issue.

[30] I note that there is no recent capacity assessment available for Henia. One would have thought that this would be a first step for the Respondents given their constant assurances regarding Henia’s capacity. While capacity assessments have been done in the past, they are dated and no longer relevant given Henia’s advancing age.

[31] Henia, through her counsel, has been resistant to even the most basic of procedural steps. The refusal to be examined as a party to this proceeding when she had never filed an affidavit was unreasonable. The Court retains a concern as to how Henia would deal with Estate creditors given her conduct in this litigation.

[32] The test for whether to require an adverse party to undergo a capacity assessment under the Courts of Justice Act and the factors to consider are set out in Abrams v. Abrams, 2008 CanLII 67884 (Ont. S.C.). Abrams also sets out some important principles regarding assessments at para. 50:

[50] In considering whether to order an assessment, whether on motion or on its own initiative, a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Pattillo said in Flynn et al. v. Flynn (December 18, 2007, unreported, Ont. S.C.J., Court file no. 03-66/07): “[a] capacity assessment is an intrusive and demeaning process.”

[33] In terms of the factors to be considered in ordering an assessment, the Court in Abrams set out the following at para. 53:

(a) whether the person’s capacity is in issue;

(b) whether there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[34] Adverting to the factors above, I make the following findings:

a. Henia’s capacity is in issue. She is 98 or 99 years old, blind and deaf. As outlined above, her answers on examination raised questions about her capacity.

b. The nature and circumstances of these proceedings puts Henia’s capacity front and centre. There are questions as to her ability to administer an estate which owes creditors millions of dollars in costs and where there are issues related to the sale of commercial properties with associated complex problems. There is also the animosity of Henia towards Harry, and Harvey’s animosity towards Harry.

c. The nature and quality of the evidence before the Court regarding Henia’s capacity is deficient and based only on the observations of legal counsel, other parties in this case and the observations of this Court. None of those observers have the ability to professionally assess Henia. However, those observations raise concerns about Henia’s capacity.

d. Henia underwent capacity assessments in 2011, 2012 and 2014 and was found to have capacity to make certain property transfers. There is no current assessment available. No finding with respect to Henia’s capacity was made at the trial in 2018 and 2019. Needless to say, a capacity assessment completed in 2014 would be of little assistance eight years later given Henia’s advanced age. I note as well that the assessments focused on Henia’s capacity to transfer property. The proposed assessment would focus on her ability to instruct counsel and manage property.

e. There is the potential of harm if the assessment is not completed. A scenario could unfold whereby the ETDL’s mandate ends if leave to appeal to the Supreme Court of Canada by Harry is denied. Administration of the estate would then revert to Henia. It was clear from Henia’s testimony during the examination that she relies on Harvey to assist her with many tasks. Harry does not trust Harvey. There is also the lingering concern about Harvey’s influence over his mother. This concern was articulated by Justice Kimmel in her judgment where she found that Harvey unconscionably procured over $8M in assets from his mother. Justice Kimmel voided those transactions. Those findings were not appealed.

f. There is urgency to the completion of the assessment given the concerns raised in the paragraph above.

g. As for Henia’s own wishes, those are unclear to the Court. Henia has never sworn her own affidavit in this proceeding. All affidavits in support of her position have been those of Harvey. Once again, this raises the spectre of Harvey’s influence over his mother and how independent she would actually be in carrying out the duties of an Estate Trustee.

[35] The Court is sympathetic to the invasive nature of a capacity assessment as adverted to in Abrams. I note, however, that in Abrams, the Court was dealing with a request for a further assessment where capacity assessments had already been recently completed by qualified assessors. The Court in Abrams adverted to cases where subsequent assessments were ordered where the first assessment was not conducted by a qualified assessor and in another case where the Court found that the assessor had not done what was requested: at paras. 51 and 52.

[36] In this case, no complaint has been raised about Dr. Kenneth Shulman’s qualifications to complete the assessments done in 2012 and 2014. However, those assessments focused on a different type of capacity and are now so dated as to be irrelevant. I therefore do not view this as a subsequent assessment but a new assessment focusing on different issues. Given the circumstances, the privacy issues raised in Abrams are not at the forefront in the same manner. Indeed, in Abrams, the individuals involved objected to undergoing another assessment due to privacy reasons. In this case, the Court has no direct information from Henia one way or the other as she has never sworn an affidavit setting out her position.

[37] The cases cited by Henia in this regard are not helpful. In Ziebenhaus v. Bahlieda, 2015 ONCA 471, 126 O.R. (3d) 541, the Court of Appeal dealt with the question of whether a Superior Court judge could order a person to undergo an assessment under s. 105 of the Courts of Justice Act by someone who was not a “health practitioner.” In that case the issue related to an order to undergo a vocational assessment. The Court of Appeal held that this Court had the jurisdiction to make such an Order where it was necessary to ensure justice and fairness: at paras. 13-15.

[38] In Kischer v. Kischer, 2009 CanLII 495 (Ont. S.C.), the Court dealt with an application under s. 79 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, requiring the Respondent to undergo an assessment. The Respondent resisted the request. However, the facts were very different as the case related to a guardianship with different legal tests. I do agree, however, that some of the principles enunciated in that case apply, especially at para. 10, as follows:

[10] The assessment process is an important tool for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from the partisan and subjective perceptions of the parties. Its utility cannot be understated. That having been said, it is important to resist the temptation to order an assessment based on the argument “it can’t hurt.” It can hurt. Privacy and freedom from coercive interference with one’s physical and mental autonomy are core values of Canadian society.

[39] In determining whether to order an assessment, the Court must engage in the balancing process set out above. In this case, I find that the importance of obtaining an independent and objective assessment of Henia’s capacity outweighs any interference with her privacy and freedom. Given the circumstances, it is not being ordered simply because “it can’t hurt”. There is a constellation of reasons for ordering the assessment as set out in detail above.

B. The Interim Relief Sought by Harry

[40] Harry seeks an interim Order to continue the ETDL’s mandate pending the hearing of his Application. Harvey and Henia argue that Justice Kimmel’s judgment precludes such relief. I disagree. Justice Kimmel’s judgment addressed Harry’s request at trial for the continuation and expansion of the ETDL’s role. Justice Kimmel adverted to the submission of counsel for the ETDL who advised that any such expansion or continuation of the Newbould Order would need to be the subject of a separate application. Justice Kimmel certainly did not preclude such an Application.

[41] Harry is simply asking for the status quo to remain in place pending the completion of the capacity assessment and the hearing of his Application. Given the concerns raised by the Court that have led to the conclusion that a capacity assessment is required, it would be illogical to permit the ETDL’s mandate to come to an end, only to have to re-appoint the ETDL. The ETDL has a long history with this matter. The ETDL is intimately familiar with the status of the costs orders, the issues relating to the sales of the commercial property and the family dynamics in this case. Changing the status quo, at least before the capacity assessment is completed and the Application heard would not be cost or time efficient.

[42] There is an objection from Henia and Harvey that Harry has no standing to bring his Application and all his relief should be denied on that basis. They argue that Harry is a named alternate Estate Trustee and not a beneficiary of the Estate. He is therefore only a creditor of the Estate without any beneficial interest in it.

[43] On this point, I agree with Harry’s counsel. While normally a third-party judgment creditor would not have standing to bring an Application for Directions under Rule 75.06, Harry is a party to this litigation and the issues of Harry’s costs, as well as those of Harvey, the ETDL and the Estate of Yehuda Gefen, are all inextricably part of this ongoing estate litigation.

[44] In Salzman v. Salzman, 2012 ONSC 1733, the lawyers who had acted as s. 3 counsel for Ms. Susanne Salzman brought a motion for directions under r. 75.06 as Ms. Salzman’s guardian of property (her son Gregory) refused to pay the balance of s. 3 counsel’s account. Ms. Salzman then passed away. Gregory opposed the law firm’s motion insisting that they did not have a financial interest in his mother’s estate and therefore had no standing. The Court disagreed and held that although the law firm was not a party, it could bring the motion under r. 75.06 as a person “who appears to have a financial interest in the estate”: at para. 14.

[45] As well, in Weidenfeld v. Parikh-Shah, 2016 ONSC 7330, the Court considered the Application of the divorced husband of the deceased to be appointed the Estate Trustee of his former wife’s Estate. He was not a beneficiary of the Estate. The Court declined his Application but dealt with s. 23 of the Estates Act, R.S.O. 1990, c. E.21, and r. 75.03 of the Rules with respect to who may qualify as persons with a financial interest in an Estate. The Court cited Smith v. Vance, [1997] O.J. No. 6534(Div. Ct.), at para. 9, with respect to standing as follows:

With respect to both Rule 75.03(1) and s. 23 of the Estates Act, where the stated interest is clear and obvious (for example, the claimant is a named beneficiary), there should be no difficulty recognizing the status of that person as a party. Different considerations apply where the claimant is one who pretends to have an interest. The word pretend is not to be interpreted as claiming or professing falsely or deceptively but rather as alleging or laying claim to an interest in law. One who pretends to have an interest is not required to prove that he or she has a financial interest before being permitted to become a party under s. 23 of the Estates Act. If such were the case, the inclusion, within s. 23 of entitlement of those persons pretending to have an interest would be redundant and superfluous.

However, claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. It need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard.

[46] I find that Harry has a genuine interest in the Estate. He is both a named alternate Estate Trustee, a party to this Application and a creditor for costs related to a trial of issues directly related to the Estate. While he is not a beneficiary of the Estate, there is clear and undisputed evidence of his claim against the Estate. I find that as per Smith above, the evidence is capable of supporting an inference that Harry’s request for appointment of an ETDL should be heard.

[47] Harvey argues that Harry lacks standing to extend the ETDL’s appointment because s. 16(1) of the Trustee Act, R.S.O. 1990, c. T.23, stipulates a new trustee may be appointed only upon the application of a person with a beneficial interest in the estate or land in question. However, Harry is not seeking to appoint the ETDL. The ETDL is already appointed. He is seeking to extend the appointment in relation to the Elias Gefen Estate. It is not a different estate.

[48] As to the issue of Harry’s lack of a beneficial interest, I find that he need not show he has a beneficial interest in the Estate, rather, he is seeking to have the Court use its inherent jurisdiction to order temporary injunctive relief in the form of a mandatory injunction. As such, he must meet the test set out in RJR-McDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

[49] RJR sets out a three-part test for determining whether a court should exercise its discretion to grant an interlocutory injunction: (1) is there a serious issue to be tried; (2) would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and (3) is the balance of convenience in favour of granting the interlocutory injunction or denying it (“RJR Test”). The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific.

[50] The test for a temporary mandatory injunction is slightly different from that of the RJR test in that the moving party must show a strong prima facie case rather than a serious issue to be tried. If a strong prima facie case can be shown, the requirement to meet the thresholds of irreparable harm and the balance of convenience are less stringent.

[51] In R. v. Canadian Broadcasting Corp, 2018 SCC 5, at para. 18 the Court described the modified RJR test to be met on a mandatory injunction as follows:

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.

[52] I find that Harry has a strong prima facie case on the merits in the context of this request for temporary relief. First, there is the issue of Henia’s capacity to act as Estate Trustee which has not yet been determined. Second, Henia has not paid any of the personal costs Order made against her thereby placing her intention to do so as Estate Trustee in question. Finally, even if she is found to have capacity to act as the Estate Trustee, the dissension amongst the parties, owners and creditors is such that her ability to act objectively will be placed squarely before the Court in any event.

[53] The irreparable harm potentially suffered by Harry if the interim relief is not granted is clear. If the ETDL’s mandate ends, Henia could take over as Estate Trustee while her capacity is still in question. Further, if Henia takes over as Estate Trustee and is subsequently found not to have capacity, there will be inefficiencies and possibly steps taken that could create more litigation. The least harm for all is to leave the ETDL in place until Henia’s capacity is determined and the costs orders paid out.

[54] Henia and Harvey maintain their position that Harry’s Application is misplaced not only because of standing issues but because as a judgment creditor he may take steps to enforce a judgment for costs in his favour. This Application is therefore unnecessary and frivolous. However, this is not as easy as the Respondents make it sound. Harry is a creditor of the Elias Gefen Estate. The subject properties are not owned by the Estate, they are owned by various individuals including Henia as a beneficiary of the Estate.

[55] Henia and Harvey also argue that since this Court ordered that all sales proceeds be paid into Court that somehow Harry’s costs orders are protected. This may or may not be true. It is not known, for example, what would happen to the proceeds if Henia became Estate Trustee. If the properties are sold and the funds are paid into Court, what delays will ensue before the costs orders are paid, if at all? The Order made by this Court was to pay the funds into Court. The Orders did not go beyond that and require that any amounts be paid from those sale proceeds other than what was required to close the sale. These are legitimate concerns of Harry and other costs creditors such as the Estate of Yehuda Gefen.

[56] Henia and Harvey argue that this is not really a request for an interim Order, a new Order is being sought since the appointment of the ETDL is related to other litigation. I disagree. The ETDL was put in place in relation to litigation related to the Estate of Elias Gefen. Litigation in relation to that Estate remains ongoing. In any event, this is not new litigation. It emanates from and is inextricably tied to the originating litigation since the majority of the costs orders in question relate to that litigation.

[57] Henia and Harvey argue that appointment of an ETDL can only be made pending an “action” as per r. 74.01. I disagree. While I view this as simply a continuation of the Newbould Order, if I am wrong, the Court has jurisdiction to make an Order on Application or motion including for an ETDL pursuant to r. 75.06.

[58] Mention must also be made of Henia and Harvey’s conduct regarding costs as recently as 2022. While there is over $3M in costs owed to various parties in relation to litigation going back to 2015, Henia was ordered to personally pay costs of $3,137.78 by the Divisional Court in February 2022, and Harvey and Henia were ordered to jointly pay costs of $15,000 to Harry in January 2022. Even these small costs awards have not been honoured. This is only one example of dozens of costs awards owed personally by Henia and Harvey which have not been paid. I raise these issues only to corroborate the Court’s concern about replacing the ETDL with Henia before this Application is heard in its entirety and the capacity assessment completed. The concern is also grounded in the animosity, distrust and dysfunction which continues to exist in this family. Leaving the ETDL in place on an interim basis is both efficient, meets the test for a mandatory injunction and reflects a cautious approach by this Court given the history of this matter.

Orders and Costs

[59] Given all of the above, I have signed the draft Order presented by Harry’s counsel with one amendment. An Order for appointment of professional property managers is not required as those managers are already in place.

[60] The cost of the capacity assessment shall be paid jointly by the Estate of Yehuda Gefen and Harry. Apportionment of those costs to other parties may be sought following the hearing of the main Application if so advised.

[61] As to costs of the motion, each of the parties at the Court’s request has submitted a Costs Outline. Harry’s partial indemnity costs are $21,462.68, Harvey’s are $5,852.50 and Henia’s are $9,077.06. While normally I would rule on costs as part of this endorsement, Harry’s counsel has asked to make submissions in relation to a party other than the parties to this litigation having some liability for costs. Given that Harry was the successful party, I will defer my costs Order and request that Mr. Fishman arrange for a 30-minute conference before me to allow for oral submissions on costs.

C. GILMORE J.

Date: June 6, 2022