Court File and Parties
COURT FILE NO.: CV-21-00655298-00ES
DATE: 20220722
SUPERIOR COURT OF JUSTICE – ONTARIO
ESTATES LIST
IN THE MATTER OF THE ESTATE OF SARA MAGHDOORI, deceased
BETWEEN:
Nosratollah Maghdoori and Sedigheh Maghdoori
Applicants
AND
Behfar Sanjari, in his personal capacity and in his capacity as Estate Trustee of the Estate of Sara Maghdoori, deceased
Respondent
APPLICATION UNDER Section 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30; Sections 49 & 50 of the Estates Act, R.S.O. 1992, C. 30; Section 131 of the Courts of Justice Act, RSO 1990, c. C.43; and Rules 1.04, 1.05, 2.01, 14.05, 16, 34, 36, 38, 39, 45, 57.01, 74, and 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
BEFORE: Kimmel J.
COUNSEL: Devin McMurtry, for the Applicants
Ronald Bohm, for the Respondent
HEARD: July 4, 2022
ENDORSEMENT
The Application and Procedural History
The Applicants’ Asserted and Pleaded Facts and Positions
[1] The respondent brought motions under both Rule 20 and Rule 21.01(1)(b) of the Rules of Civil Procedure seeking the dismissal of the application. The r. 21 motion proceeded, but the r. 20 motion did not. Unfortunately, the evidentiary record and factual contentions do not differentiate between these two motions, nor between these substantive motions and the applicants’ production and disclosure motion. Nonetheless, the r. 21 motion must be decided on the basis of only the asserted facts (presumed to be true).
[2] The background facts described below are based on the applicants’ assertions (pleadings). There are some facts admitted by the respondent that are noted for historical context, but ultimately, this r. 21 motion is being decided based on the applicants’ pleaded or asserted facts summarized below, as that is all that the court is permitted to consider.
[3] The applicants, Nosratollah and Sedigheh Maghdoori, are the parents of Sara Maghdoori (“Sara”), who died of cancer on February 1, 2020. The respondent Behfar Sanjari (“Behfar”) was Sara’s husband.
[4] An online GoFundMe campaign was initiated by Sara in the fall of 2018 when she decided to undergo an expensive cancer treatment called hyperthermic intraperitoneal chemotherapy ("HIPEC") in the United States. Sara opened a new bank account in her name at the Royal Bank of Canada ( the “RBC account”) into which the funds she received were deposited. She used funds from this account to pay for the HIPEC surgery that she underwent on November 5, 2018. This procedure cost approximately $163,777.
[5] According to the webpage, by the time the GoFundMe fundraiser was closed down by Sara in or about November 2018 approximately 2000 donors had donated a total of $238,474 through this online platform (the “GoFundMe funds”). Some other friends and family members (including the applicants) advanced monies directly to Sara rather than donating through the GoFundMe website (the “direct donations”; collectively, with the GoFundMe funds, the “donated funds”). The donated funds would have been co-mingled by Sara in her RBC account.
[6] Sara made a will dated November 13, 2018 (the “Will”) that appointed her husband Behfar the sole executor and beneficiary of her estate. At the same time, she signed a power of attorney for property and personal care appointing her husband as her attorney. She did this shortly before travelling to Iran for further treatment, after which Behfar acknowledges that he began managing the remaining donated funds. He transferred funds to Sara from her RBC account while she was receiving treatment in Iran before her death. However, the applicants assert that Behfar was effectively managing and controlling the RBC account prior to becoming Sara’s power of attorney for property.
[7] The applicants do not challenge the validity of the Will or the powers of attorney.
[8] The applicants seek by this application to remove Behfar as the estate trustee of Sara’s estate and to have themselves appointed as succeeding estate trustees. They also seek a preservation order in respect of the estate assets, including Sara’s personal effects, and the appointment of an estate trustee during litigation to manage the estate assets. They seek various orders for production and accounting from Behfar in his capacity as estate trustee and for production of Sara’s medical, financial, and legal records from third parties. Collectively, I will refer to these as the “estate-related claims.”
[9] The primary impetus for this application, however, is that Sara’s parents believe that Behfar has misappropriated, for his own use and benefit, some of the donated funds that were given to Sara while she was alive that were intended to be used for purposes of the HIPEC cancer treatment that she underwent in the United States in November 2018.
[10] It is alleged that these donated funds are impressed with a constructive trust. The applicants insist that the donated funds held in Sara’s RBC bank account were intended by Sara to only be used for the HIPEC surgery and treatment and that she expressed the intention and desire that any excess funds not needed for that specific purpose would be returned to the donors.
[11] The respondent maintains that the funds were intended to be used to help Sara with the financial burdens of her illness and he contends that is what they were used for. In this regard, Behfar acknowledges that he received $71,308 from Sara’s RBC account while she was alive, and that he received the balance remaining in the RBC account of $13,448.33 after she died, to defray expenses related to Sara’s illness and her death. The applicants assert that these (and perhaps other) funds were “misappropriated” by Behfar, contrary to the purposes of the trust.
[12] In respect of these allegedly misappropriated “trust” funds, the applicants seek various declarations, orders, and directions so as to ensure that Behfar does not personally benefit from any donated funds received but not used for the HIPEC treatment, and to ensure that those funds are either proportionally returned to the donors or given to charity. Collectively, I will refer to these as the “trust-related claims.”
[13] The applicants do not seek the return of any monies for themselves. None of the other donors have asserted any claim or position respecting the donated funds and none are participating in this proceeding.
[14] The applicants’ standing to bring this application in respect of both the estate-related claims and the trust-related claims has been at issue from the outset.
The Previous Production Motion and Consent Order
[15] An earlier production motion and cross-motion were settled, and the Minutes of Settlement were incorporated into an endorsement and order of Pattillo J. dated June 11, 2021 (the “consent order”). Pursuant to the consent order, the respondent agreed to use best efforts to identify the recipient(s) of all transfers of $1,000 or more that flowed from the RBC account. He sought from RBC and produced the entirety of Sara’s RBC account statements. He obtained and produced all of the available information about deposits from the GoFundMe fundraiser into that RBC bank account. Behfar also provided the information that is within his knowledge about how the donated funds were used, including an acknowledgment that some of these funds were used to reimburse him for medical and travel expenses incurred on Sara’s behalf and/or to cover some of their living expenses and to cover some of Sara’s funeral and other related expenses.
[16] The produced records disclose that the donated funds, including the GoFundMe funds, were used well after the date of Sara’s HIPEC surgery for such things as luggage and a wig from the Princess Margaret wig salon for her friend who was undergoing cancer treatment. The donated funds were also used to pay for caregivers, living expenses, and other medical expenses and, on two separate occasions, to pay off Sara’s personal credit card.
[17] Although there is some disagreement about certain matters that remain to be fulfilled under the consent order (the most significant for purposes of this motion being the copying and return of Sara’s iPhone to the applicants), the parties do appear to have made efforts to fulfill their respective obligations thereunder. They also voluntarily agreed to attend a mediation with a retired judge on May 25, 2022, which was, unfortunately, not successful.
The Present Motions
[18] After the mediation, the applicants brought this further motion for production and disclosure and the respondent countered with a motion to strike the application (under r. 21) and/or for summary judgment (under r. 20). At the outset of argument, it was conceded by counsel for the respondent that the r. 20 summary judgment motion could not proceed at this time because, at the very least, this application would first have to be converted into an action for the court to entertain a summary judgment motion under r. 20. The predicate for both the r. 20 and r. 21 motions is the same (lack of standing); the distinction is that no evidence can be considered on the r. 21 motion, which must be decided based on the pleaded/asserted facts presumed to be true.
[19] It was suggested that the court first hear the respondent’s r. 21 motion to strike, predicated solely on the issue of whether the applicants have standing to seek the relief that they do on this application. Depending on the outcome of that motion, the court could then consider the applicants’ further production motion.
The Rule 21 Motion to Strike the Application
[20] The respondent argues that the pleadings do not disclose any viable cause of action because the applicants have no standing to seek the remedies they do. That is the basis on which he asks the court to dismiss this application under r. 21. To succeed, the respondent would have to convince the court that it is plain and obvious that the applicants do not have standing to do so and that their estate-related claims and trust-related claims are doomed to fail. Anything short of that, the motion must be dismissed.
[21] The r. 21 motion is focused on the applicants’ standing and raises the following questions to be decided based on the asserted facts:
a. Is it plain and obvious that the applicants lack the standing to assert the estate-related claims to remove Behfar as estate trustee and to gain access to Sara’s assets and information?
b. Is it plain and obvious that the applicants lack the standing to assert the trust-related claims to ensure that the donated funds received by Sara and not used for her HIPEC treatment are returned, pro rata, to donors or donated to charity?
[22] I find that the applicants’ estate-related claims should be struck because the applicants are not challenging Sara’s Will and they are not designated under the Will to be direct or residual beneficiaries of Sara’s estate. They have no financial interest in her estate and it is thus plain and obvious that they have no standing to assert the estate-related claims. On the other hand, I find that the trust-related claims should not be struck because it is not plain and obvious that the applicants do not have standing to assert those claims.
[23] With respect to the applicants’ production and disclosure motion, it is restricted to only the remaining trust-related claims that are not being struck. I do not find it appropriate to order further production relating to the trust-related claims at this time, but I do order that the contents of Sara’s iPhone should be copied as set out below on the basis of an agreement that was reached between the parties at the conclusion of the hearing.
The Test on a Rule 21 Motion
[24] Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits any party to move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. No evidence is admissible on such a motion. The pleadings are taken as true.
[25] In an application, the pleadings include the Notice of Application, supporting affidavit(s), and evidence of the applicants. These are treated as pleaded material facts for purposes of a r. 21 motion. Although no case was cited by the parties for this point, it was discussed during oral argument, and this approach to a r.21 motion on an application has been approved by the Court of Appeal: see e.g. National Steel Car Limited v. Independent Electricity System Operator, 2019 ONCA 929, at para. 24, citing the motion judge at National Steel Car Limited v. Independent Electricity System Operator, 2018 ONSC 3845, at para. 7.
[26] On a motion to strike, a statement of claim is to be given a "generous reading” and is only to be struck in the "clearest of cases," and where it is "plain and obvious" that there is no chance of success: see Seabrook et al v. Murison et al., 2021 ONSC 7892, at para. 5; Lochner v. Toronto Police Services Board, 2013 ONSC 4387, at para. 18; and Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.
[27] The Supreme Court in Hunt (at pp. 979-980) articulates the test for determining whether to strike a pleading as follows: assuming the facts asserted to be true, is it plain and obvious that the pleadings disclose no reasonable cause of action. Or put another way, is the claim certain to fail because it contains a radical defect. Conversely, the existence of any scintilla of a claim, or a novel claim, will save it from being struck.
Standing
[28] In a recent decision, the Court of Appeal set out the test for determining a party’s standing on a r. 21 motion:
a. The party must have either a public interest or a private interest standing.
b. In cases where private interest standing is asserted (such as this one), the party must have a personal and direct interest in the issues to be litigated. It is not enough that they have a sense of grievance or will gain the satisfaction of righting a wrong or are upholding a principle. To have private interest standing, a person must have a personal legal interest in the outcome.
See Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, 153 O.R. (3d) 385, at para. 33, leave to appeal refused, 2021 61407 (SCC).
a) Standing to Assert the Estate-Related Claims
[29] With respect to the estate-related claims, the argument is simply that the applicants are not challenging the Will and have no direct or indirect financial interest in Sara’s estate. Thus, they have no standing to make any of the estate-related claims.
[30] Rule 75.06 permits a person with a financial interest to apply for directions regarding the administration of an estate. The applicants contend that they come within this rule by virtue of claiming to "have a contingent interest on an intestacy.” However, there is no intestacy, or prospect of one, in the face of Sara’s valid and unchallenged Will. To have standing to make the estate-related claims, the applicants would need to have a direct interest, not a tangential or contingent one (see Carroll at para. 33). Although, even the contingent claim they assert is not viable.
[31] Rule 9 does not provide for a different or less restrictive test for standing to challenge the conduct of an estate trustee. The decided cases involve persons with some financial interest in the estate, if not as beneficiaries, then as a creditor of the estate: See Gefen v. Gefen et al, 2022 ONSC 3378.
[32] The applicants contend that their asserted interest need not be financial and that their interest in vindicating their daughter’s intentions and wishes are sufficient. Their contention is not supported by the wording of r. 75.06, which requires a “financial interest” in the estate. Further, the applicants cite no authority for the proposition that they can assert the estate-related claims when they are not direct or contingent beneficiaries of the estate and have no direct personal interest in the estate.
[33] While there may well be items of strong sentimental value to the applicants that were among Sara’s personal belongings, they have no legal claim to those items in the estate. Some personal items have been voluntarily given to the applicants by Behfar. In oral argument, I was asked to infer that they are claiming a beneficial or equitable interest in those items (e.g., that they do not form part of the estate). That is not pleaded and I consider it to be too much of a stretch. These are items of her property, and I was not provided with any authority for how they could be addressed other than through her estate.
[34] The applicants have not asserted any viable basis upon which they could have standing to make the estate-related claims when they are not direct or residual personal beneficiaries or creditors of Sara’s estate. They have no viable claim or legal interest in the estate-related claims.
[35] It is plain and obvious that the applicants’ estate-related claims have no chance of success. They are struck pursuant to r. 21.01(1)(b).
b) Standing to Assert the Trust-Related Claims
[36] The interest that the applicants seek to enforce in relation to the trust is described by them as a moral or ethical obligation to ensure that the funds Sara received from the GoFundMe fundraiser and/or directly from other family members are returned to donors or donated to charity. With respect to the trust-related claims, they seek, among other things:
a. a declaration that the donated funds conditionally given by Sara's friends, family, neighbours, and other members of the community to Behfar and Sara were conditional gifts tied directly to the HIPEC treatment, and were not absolute gifts; and
b. a declaration that Behfar holds (and held) the remaining donated funds that were not used for the HIPEC treatment for the benefit of the donors by way of constructive trust.
[37] The applicants are broadly seeking an investigation and accounting of all donated funds co-mingled in Sara’s RBC account or wherever held. Those include direct donations (from them and others) and the GoFundMe funds (which the applicants did not contribute to). The applicants assert that they donated to the HIPEC fundraiser, even if not through the website (the GoFundMe page). They also provided funds for other care and health expenses.
[38] In their words, they are not suing solely for the return (ore redeployment to charity) of the GoFundMe funds, but for all the funds raised for Sara’s HIPEC treatment, whether donated through GoFundMe or via e-transfer, cash donation, or other medium.
[39] They do not seek the return of any of the funds they gave to Sara. To the extent those were not used, they can be donated to the charities established in Sara’s name. The applicants state in the grounds to their Notice of Application at paragraphs 2(i) and (j) that:
(i) Sedrigheh [sic] and Nosrotollah [sic] donated personally to the Misappropriated Funds, but they are not concerned about collecting the money owed to them. They are motivated by strong ethical reasons for returning the Misappropriated Funds to the donors. They find it upsetting and insupportable for Behfar to profit from a genuine fundraiser to finance medical treatments for Sara;
(j) Behfar owes money to the Applicants, but the Applicants are in no way motivated to collect upon this debt, or to gain anything financial for themselves. Their sole motive is to do what is ethical; namely, to ensure that the Misappropriated Funds are donated to the Charities, or to some other philanthropic cause in line with Sara’s philanthropic nature.
[40] The applicant Nosratollah’s supporting affidavit goes on to say that:
Although my Spouse and I have personally contributed to my Daughter's medical care, I am interested in seeing the return of residual Campaign funds to respective donors who are not family members, or in the alternative, seeing such amounts donated to a charitable organization. I believe my Spouse and I, and the Maghdoori family, have a social, ethical and legal obligation to fulfill my Daughter's wishes of returning the residual Campaign funds.
To be clear, our family, namely me, my Spouse, and Babak, do not want any of this money ourselves. We are in no way acting in self-interest. We want this money given to the Charities or the donors (again, not ourselves) because it is the right and honourable thing to do, and we do not want my Daughter's legacy tainted by the perception that people in our family profited from her sickness and this tragedy.
[41] Behfar argues that the applicants have no standing to advance claims in respect of the GoFundMe funds because they did not donate through that fundraising platform. However, the applicants’ claims, when read generously, are asserted in respect of all donated funds managed through Sara’s RBC bank account. The applicants did provide Sara with funds, just not through GoFundMe. They assert alternative remedies, which include repayment of funds that were not used for Sara’s HIPEC treatment and/or donation of those funds to the charities that the applicants have established in Sara’s name or to other charities in line with Sara’s philanthropic nature.
[42] The applicants are seeking to fulfill what they believe their daughter Sara’s wishes and intentions were with respect to the donated funds that they contributed to. They ask that the handling of these funds be accounted for and that the donated funds be used in a manner consistent with the alleged purposes or objectives of the trust and the intentions of the settlor of the trust, Sara, who was also the trustee (and whose role and responsibilities as trustee were eventually taken over by Behfar). When viewed in this manner, these are claims that fall outside of the estate.
[43] There is an issue to be tried about what exactly those intentions are (e.g., that the donated funds be used only for Sara’s HIPEC treatment, or that they be used for anything associated with Sara’s illness, treatment, and comfort). That is not something that needs to be resolved for purposes of this r. 21 motion. In this context, what the applicants say the intentions were is presumed to be true.
[44] Without putting too fine a point on it at this stage, the way I see this claim playing out is that, if there was a trust over the donated funds, Behfar is a successor trustee to the extent he took control or management over those funds, whether pursuant to Sara’s instructions, the power of attorney are upon becoming her estate trustee. He is alleged to owe fiduciary duties to fulfill the objectives of the alleged trust and not to act in a conflict or in such a way as to benefit personally from the use of those funds.
[45] The applicants’ claims in respect of the trust focus on what they describe as moral or equitable rights. They wish to protect their family’s reputation against any perception that people in the family profited from Sara’s sickness and her tragic death. However, they also assert a direct and personal interest in the fulfillment of objectives of the alleged constructive trust that they contributed to for the purpose of Sara’s HIPEC treatment. If those objectives can no longer be fulfilled, they are asking that any residual donated funds that were not needed for the HIPEC treatment be returned to the donors or donated to a philanthropic cause consistent with Sara’s wishes, and not be retained by Behfar personally.
[46] The applicants referred in passing to the trust concept of cy-pres. This comes into play when it has become impracticable to carry on a trust in the manner originally planned by the settlor, the ultimate objective being that the trust does not fail. In such circumstances, it has been held to be appropriate for the court to apply the cy-pres doctrine and invoke its inherent jurisdiction to propound a scheme that will permit the general charitable intent to be advanced: Canada Trust Co. v. Ontario Human Rights Commission, 1990 6849 (ON CA), 1990 CarswellOnt 486 (C.A.), at paras. 44-45. Two requirements must be met for the application of the doctrine: (1) the purposes of the trust are impossible or impractical to fulfill; and (2) the settlor had a general charitable intent: McGillivray Estate v. Huntsville District Memorial Hospital, 1995 CarswellOnt 379 (Gen. Div.), at para. 5.[^1]
[47] The applicants do not have to be seeking the return of their funds to persuade me that there is at least some chance that they will be found to have a sufficient direct interest in the donated funds, which they contributed to (and assert were to be held in trust), and they would therefore have standing to advance these claims. The present case is distinguishable from Carroll v. TD Bank, which is relied upon by the respondent, (at paras. 3, 11, 26, 27, 29, 33). In Carroll, the whistleblower lacked any direct personal interest in the trust because she had not contributed to it in any manner and was not a beneficiary of it. She was, rather, just an employee of the trustee.
[48] In the broadest sense, the applicants contributed to the donated funds, even if not through the GoFundMe campaign. Even if they are not seeking the return of their funds (but, rather, a cy-pres donation of their proportion of any remaining donated funds not used for the intended purpose to the charities they have established in Sara’s name), as donors to the alleged trust the applicants may be found to have an interest in ensuring that the purposes of the trust itself, which they donated to and facilitated the creation of, are adhered to. This claim seeks to establish the full extent of amounts donated that form part of the trust, the purposes of the trust, the extent of any donated funds that were not used for the established purposes, and to eventually uphold those purposes once established.
[49] The legal and equitable theories, analytical framework and authorities were not fully presented by either side. However, on the whole, it appears to be at least arguable that the applicants have a sufficient personal and direct interest in the issues to be litigated so as to give them standing to make the trust-related claims. Based on this, the claim should not be struck.
[50] It may be that, absent some direct evidence or involvement of the other donors, the only available remedy will be for the excess funds to be donated to charity “cy-pres,” but the alternative remedies at this stage will not be struck as having no chance of success. The court is not likely ultimately to order a remedy in favour of third parties who are not seeking it in a proceeding that is not a certified class action or representative action (of which this is neither). But I am not prepared to rule out the possibility of the pleaded alternative remedies at this time and on this r. 21 motion since the question of the applicants’ standing has not been demonstrated to be a lost cause. It is not plain and obvious that the applicants have no standing, and I cannot say at this stage that the trust-related claims are doomed to fail.
[51] Based on the disclosure that they have received pursuant to the consent order, the applicants are concerned about the approximately $71,000 that Behfar acknowledges he received from the donated funds prior to Sara’s death and the approximately $13,000 he acknowledges he received from the donated funds after Sara’s death (and any other donated funds he may later be shown to have benefited from). That said, the applicants’ trust-related claims are not limited to funds received by him and could apply to any donated funds that were not used for the HIPEC treatment.
[52] In theory, the applicants’ assertions regarding the alleged “misuse” of donated funds could apply to funds used by Sara herself before she died for purposes other than the HIPEC surgery and treatment, but that will be an issue for another day. There are many issues that will need to be resolved on their merits. All this motion determines is that the entirety of the applicants’ trust-related claims are not being struck at this time.
Rule 21.02 – Delay
[53] Rule 21.02 requires a motion under r. 21.01 to be made promptly and provides that a failure to do so can be taken into account by the court in awarding costs. It may also be considered when deciding whether to strike a pleading: see Fleet Street Financial Corp. v. Levinson, 2003 21878 (Ont S.C.), at paras. 12-25; Abrahams v. Attorney General of Ontario, 2022 ONSC 514, at para. 30.[^2]
[54] This application was started over a year ago and has already been through the exchange of affidavit evidence, some cross-examinations, and a production motion. While it appears on the surface that this r. 21 motion was not brought promptly, I note that many intervening steps were pursuant to a consent order on an earlier motion based on Minutes of Settlement that sought to streamline and potentially settle the litigation. Thus, delay has not been factored into my decision on this r. 21 motion.
The Applicants’ Production Motion
Financial Disclosure
[55] The applicants seek financial production and a tracing order for the period February 1, 2018 to February 1, 2020 and an informal accounting from Behfar. Much of what they seek on their production motion is predicated upon the estate-related claims, which have been struck.
[56] The applicants were advised during the hearing of these motions that the court would be striking the estate-related claims on the basis that they have no standing to advance those claims where the Will is not being challenged (with reasons to follow, now provided). Counsel was asked to narrow the production requests on the applicants’ production motion to accord with the possibility that, if the application proceeds, it would only be in relation to the trust-related claims. On that basis, the production issues were narrowed.
[57] Now the applicants only seek a limited informal accounting respecting the donated funds and related RBC banking records.
[58] The respondent says this has already been provided, to the best of his knowledge and ability, after applying the agreed upon $1,000 de minimus threshold under the consent order.
[59] Behfar maintains that it was Sara who was managing all of the donated funds until he began to act under the power of attorney for property at her request on December 4, 2021. The applicants allege that he was acting as Sara’s de facto attorney for property even beforehand and was directing where funds went. However, Behfar denies this and maintains that he has no ability to account for the conduct of Sara’s financial affairs, over which Sara had exclusive control until December 4, 2019, aside from the disclosure of the RBC account statements that has already been made by him pursuant to the consent order.
[60] Behfar argues that to order anything further would be ordering him to do something that he has testified he has already done and that would be unfair. Based on the evidence from Behfar, which is appropriate for the court to consider in the context of this production motion, it appears that there is little more that can be produced by Behfar and the court is not inclined to make an order for the respondent to do that which he says he has already done.
[61] If the applicants have further questions about the disclosure that has been provided by Behfar, they can ask him about it when they cross-examine him. At this stage, there is no point in the court ordering him to do more when he says he has provided all he has and when his evidence has not been tested on cross-examination. Nothing further is ordered at this time.
The Return of Sara’s iPhone
[62] On June 11, 2021, Justice Pattillo ordered that Sara's iPhone be temporarily sent to Behfar's counsel so that it could be copied, and thereafter returned. The parties contemplated the return of Sara's iPhone once counsel for Behfar had an opportunity to copy it. It was sent on June 18, 2021. He has had it for more than a year. The applicants allege that is far more time than was reasonably necessary. They ask the court to order the immediate return of the iPhone to them.
[63] Despite numerous requests, Sara's iPhone has not been returned. For some time, Behfar's counsel wrote that the iPhone could not be copied unless Sara's Apple ID (which the Moving Parties do not have) was provided. However, the applicants obtained an expert opinion indicating that this was not required.
[64] Behfar continues to maintain that further co-operation is needed from the applicants for him to be able to make a copy of the iPhone’s contents and return it. He has therefore proposed that the applicants make a copy of its contents for him.
[65] The IT experts do not appear to agree about what is required to copy the iPhone for Behfar, as the consent order contemplated would be done. The applicants’ IT expert seems to have some idea of how to do this. Based on this, at the hearing of this motion, counsel for the respondent agreed to return the iPhone to counsel for the applicants, who in turn, agreed to provide it to their IT expert to copy the contents for the respondent at the respondent’s expense (as long as the cost is reasonable).
Final Disposition and Costs
[66] For the foregoing reasons, paragraphs 1 (a) through (i), (q), (r), (s), and (t) of the relief claimed by the applicants’ Notice of Application, which correspond with the estate-related claims, are struck pursuant to r. 21.01(1)(b). Paragraphs a (j) through (p) of the relief claimed in the Notice of Application, which correspond with the trust-related claims, are not struck and shall proceed to be adjudicated. My understanding is that the relief relating to the Headstone/Monument at paragraphs 1(u) to (w) has been resolved.
[67] No further production in connection with the trust-related claims is ordered at this time but may be requested (or the absence of any further available disclosure and production may be tested) during the cross-examination of the respondent.
[68] The copying of Sara’s iPhone shall be addressed in the manner agreed to, as described above.
[69] With this narrowing of issues, the court is optimistic that a streamlined evidentiary and trial process can be agreed upon. This may include an allowance for some viva voce evidence at the hearing on the merits on any remaining points that might be impacted by credibility assessments. If possible, it would be preferable and proportionate for these parties not to go through a further contested motion about whether to convert the application to an action and the implications of that from a pre-trial perspective.
[70] The parties are encouraged to try to come to an agreement that is proportionate and cost effective in this regard. If they do reach an agreement, they may book a scheduling appointment to put a consent timetable and order in place. Alternatively, if they cannot agree, they may book a longer case conference to seek further guidance from the court about this. They are directed to do so before any further motions are scheduled. I am not seized.
[71] The parties asked to be given the opportunity to make brief written cost submissions after the release of my decision and reasons. In my view, absent some compelling reason, there was divided success on the issues ultimately argued and decided. Accordingly, the parties would be best advised to either agree that they each bear their own costs or that costs be in the cause for these motions.
[72] If they cannot reach an agreement along these lines (or on any other basis that they advise the court of) by August 5, 2022, then they may each deliver a brief written cost submission of no more than three pages double spaced by August 19, 2022 (attaching their respective cost outlines) and may deliver a response to the submission received of no more than one and a half pages double spaced by August 26, 2022.
[73] They shall advise the court by email to my judicial assistant linda.bunoza@ontario.ca if an agreement is reached on or before August 5, 2022. They shall provide copies of their cost submissions and costs outlines in the same manner (by email to my assistant) if no agreement is reached. All cost submissions and attachments shall also be filed with the court through the online filing portal and uploaded onto CaseLines.
[74] This endorsement and the orders and directions contained in it shall have the immediate effect of a court order without the necessity of the formal issuance and entry of an order. Any party may take out a formal order, if so advised, by following the procedure under Rule 59.
Kimmel J.
Date: July 22, 2022
[^1]: This law was not argued, only the concept or theory was referred to by the applicants. I refer to this authority simply to illustrate where that theory would take them if it is pursued, in order to contextualize the analysis of the immediate question of whether their trust-related claims are doomed to fail.
[^2]: These cases were not directly referenced by the parties, but this point was raised during oral argument on the motion.