Court File and Parties

COURT FILE NO.: CV-21-673703-00ES

DATE: 20220429

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF WILLIAM EDWIN JONES, deceased

RE: BRIAN JONES, in his capacity as estate trustee of the estate of the late William Edwin Jones, deceased, Applicant

AND:

COLIN JONES, personally and in his capacity as estate trustee of the estate of the late William Edwin Jones, deceased, and JAMES MOON Respondents

APPLICATION UNDER Sections 127-131 of the Courts of Justice Act, RSO 1990, c C43; Section 37 of the Trustee Act, RSO 1990, c T23; and Rules 1.04, 1.05, 2.01, 9, 14.05, 16, 34, 36, 37, 38, 39, 45, 57.01, and 75 of the Rules of Civil Procedure, RRO 1990, Reg 194

BEFORE: Kimmel J.

COUNSEL: Devin McMurtry, for the Applicant

Christopher Crisman-Cox, for the Respondent, Colin Jones, personally and in his capacity as estate trustee of the estate of the late William Edwin Jones, deceased

Jessica Koper, for the Respondent, James Moon

HEARD: April 25, 2022

ENDORSEMENT

[1] This application was commenced on the Toronto Estates List on December 14, 2021 by Brian Jones (“Brian”). The respondent is Colin Jones (“Colin”), the applicant’s brother. The parties are the beneficiaries and estate trustees of the estate of their late father, William Edwin Jones. This “Toronto application” deals with the administration of the estate of William Jones.

[2] Colin had previously commenced an application in Guelph, Ontario under court file no. CV-21-00000285-0000 (the “Guelph application”) on September 17, 2021, also dealing with the administration of the estate of William Jones.

[3] William Jones lived near Guelph (in Wellington County, where the Guelph application was commenced). The estate assets are located in or on the border of Wellington County, including a farm property, personal effects, and bank and investment accounts. All of the parties (including the estate solicitor named as a respondent in the Toronto application and a branch of BMO Trust Company, an added respondent to the Guelph application) are located in or close to Wellington County.

[4] Colin moves for an order consolidating the Toronto and Guelph applications and transferring the Toronto application to Guelph so that the two applications can be heard together or one after the other. There is no reasoned basis for opposing the consolidation of the Toronto and Guelph applications, which raise many common issues. What Brian does oppose is any consolidation that involves a transfer of the Toronto application to Guelph such that the benefit of the Toronto Estates List’s mandatory mediation requirement and case management offerings are lost. Effectively, Brian is arguing that the consolidated proceeding should be heard in Toronto, not Guelph.

Consolidation and Hearing Together or One After the Other

[5] Rule 6 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, deals with consolidation or hearing together of proceedings. The court is directed to have regard to s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which directs the court to avoid a multiplicity of proceedings as far as possible.

[6] Rule 6 provides that:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

[7] The issues raised in the Toronto and Guelph applications fall within all three of the categories of proceedings under r. 6.01(1)(a), (b), and (c). They should be consolidated or heard at the same time or one immediately after the other, as provided for in r. 6.01(1)(d). In order for them to be consolidated, they will need to be heard in the same venue.

Transfer of the Toronto Application to Guelph

[8] Brian had the right to choose the county in which to commence his application under r. 13.1.01(2) and he chose Toronto. However, on any party’s motion, the court may transfer a proceeding to another county, as Colin is asking the court to do on this motion. The court is directed to consider the non-exhaustive list of factors set out in r. 13.1.02(2) to determine whether to transfer the Toronto application to Guelph, including:

13.1.02 (2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.

[9] There is no suggestion that a fair hearing cannot be held in Toronto (or in Guelph) (r. 13.1.02(2)(a)). There is no evidence of a difference in available court dates for estate applications (r. 13.1.02(2)(b)(viii) — although it was suggested that the matters might be heard more quickly on the Toronto Estates List, there is no evidence of such). Nor is the convenience of the parties or witnesses particularly relevant in the current environment where most matters are proceeding by way of virtual hearings: see McIntosh v. Jason Boccinfuso, 2021 ONSC 2360, at para. 34. Virtual hearings will likely remain an option for parties if requested and where the circumstances warrant it (as they may well in a situation such as this where proceedings commenced in two different counties are to be consolidated). There is no suggestion that there is any community interest in these applications. Thus, the factors under r. 13.1.02(2)(b) (iv, v, and vi) are largely irrelevant to the court’s determination of this motion.

[10] I consider the transfer of the Toronto application to Guelph to be in the interests of justice because:

a. The material events or omissions that gave rise to both the Toronto and Guelph applications occurred in Wellington County, where the Guelph courthouse is situated (r. 13.1.02(2)(b)(i)).

b. To the extent that either Brian or Colin have sustained damages, they were sustained in Wellington County (or closer to Wellington County than Toronto) (r. 13.1.02(2)(b)(ii)), where the estate assets are situated and they both live (r. 13.1.02(2)(b)(iii)).

c. The applications should be consolidated having regard to the factors in r.6.01(1), which means they need to be heard in the same venue (r. 13.1.02(2)(b)(ix)).

[11] There is no question that Guelph has a much stronger connection to the parties and the subject matter of the disputes in both the Toronto and Guelph applications. In opposition to the transfer of the Toronto application to Guelph, Brian argues that there are advantages to an estate matter being on the Toronto Estates List with respect to securing the just, most expeditious, and least expensive determination of the proceeding on its merits (r. 13.1.02(2)(b)(vii)) because of the mandatory mediation requirement and the availability of case management. While those are valuable tools that have been recognized for achieving a just and expeditious determination of a proceeding on its merits (see Mkangwana v. Lover (1996) Ltd., 2001 O.J. No. 350 (Ont. C.J.), at para. 13), that alone is not sufficient to displace the other factors that favour Guelph in this case.

[12] Toronto will not trump other jurisdictions that are substantively connected to the issues in dispute just because of the way in which the estates list is run. All else being equal (having regard to other factors), the Toronto Estates List might tip the balance. However, in a case such as this, where there is no other factor favouring Toronto and there are factors favouring Guelph, the procedural advantages of the Toronto Estates List do not justify denying the request for the transfer of the Toronto application to Guelph when it has been determined that the two proceedings should be consolidated to avoid a multiplicity of proceedings.

[13] Under r. 6.01(2), the court may give such directions as are just to avoid unnecessary costs or delay. It is always open to the court to grant the terms of an order made on a motion (r. 37.13(1)). There are benefits to requiring the parties to attend an early mediation for the type of disputes as are raised in these applications, which involve not only legal and factual questions but family history and inter-personal dynamics.

[14] Brian proposed, as an alternative to his position that the Toronto application remain on the Toronto Estates List (implicitly, requesting that the Guelph application be transferred to Toronto so that the two proceedings can proceed on a consolidated basis here), that the court impose as a term of any order for consolidation and transfer to Guelph that the parties attend a mandatory mediation. Colin opposed this request, maintaining that the parties are entrenched in their positions and there is nothing to be gained from a mediation. If the court accepted that as a valid ground to dispense with mediation, most cases would never proceed to mediation. It is in the interests of ensuring the just, most expeditious, and least expensive determination of these applications on their merits that the parties attempt a mediation: see Wilcox v. Flintstone Glass & Mirror Ltd., 2009 CanLII 73279 (Ont. S.C.), at paras. 33 – 38.

[15] I consider it to be in the interest of justice that the parties be required to attend a mediation as a term of the order granted on this motion for consolidation of the two applications and for them to be heard together, or one after the other, in Guelph.

[16] The parties were advised at the conclusion of the hearing of the court’s decision (with reasons to follow) that:

a. The Toronto and Guelph applications are ordered to be consolidated and heard together or one after the other as the applications judge may direct;

b. The Toronto application is transferred to Guelph;

c. The parties shall attend a mandatory mediation as a condition of the orders made herein; and

d. There shall be no costs to either party of this motion (both shall bear their own costs).

[17] These applications shall henceforth proceed under the Guelph court file number with Colin as applicant and Brian as respondent. Brian’s affidavit in support of his Toronto application will serve as his responding affidavit in the Guelph proceeding. There may already be reply or other materials that form additional parts of the record, the details of which I am not privy to and do not by this order intend to foreclose reliance upon. The parties can seek an order for directions in the consolidated proceeding Guelph if need to ensure that the record is properly co-ordinated.

[18] Counsel for the solicitor respondent James Moon in the Toronto application took no position on this motion but asked that it be made clear in the ultimate result that any examination of him shall be conducted one time for purposes of both applications, with both parties at liberty to question him. No party opposed this request, and it is so ordered (to the extent not already provided for in earlier scheduling orders).

[19] I am told there has already been an order made in the Guelph proceeding for common discovery (among other things). The Guelph court will assume responsibility for the timetabling, scheduling, and hearing of the next steps in these now consolidated proceedings. The parties shall be responsible for ensuring that they include in their schedule of proceedings the mediation that the court has ordered them to attend on this motion. The Toronto application does not need to be kept on the Toronto Estates List for this purpose, as the parties are in control of scheduling a mediation regardless of which court they are in and they are required to comply with court orders, such as the order made herein that they attend a mediation.

Costs and Implementation

[20] After being advised of the outcome of this motion at the conclusion of the hearing, the moving party acknowledged that there was divided success (given Colin’s opposition to the term of the order requiring the parties to mediate) and that an award of no costs to either party was appropriate. The responding party concurred. In the exercise of my discretion under r. 57 and s. 131 of the Courts of Justice Act, there shall be no costs to either party of this motion.

[21] This endorsement and the orders and directions contained in it shall have immediate effect as a court order without the necessity of the issuance and entry of a formal order, although either party may ask for an order to be issued and entered under r. 59 should one be required.

Kimmel J.

Date: april 29, 2022