Superior Court of Justice - Ontario

OSHAWA COURT FILE NO.: CV-22-1301

DATE: 20221101

IN THE MATTER OF THE ESTATE OF RUTH EILEEN STEVENS MACBETH

RE: JOHN MACBETH, Applicant

AND:

ROBERT HURST and CATHERINE HURST, in their capacities as Estate Trustees of the Estate of Ruth Eileen Stevens MacBeth, WENDY MACBETH, CHLOE PY-MACBETH and MAYA MACBETH, Respondents

BEFORE: THE HON. MADAM JUSTICE A.A. CASULLO

COUNSEL: J. Karjanmaa and A. Bloom, for the Applicant J. Turner, for the Respondents Robert Hurst and Catherine Hurst Chloe Py-MacBeth, Self-Represented Maya MacBeth, Self-Represented

HEARD: October 25, 2022

ENDORSEMENT

Overview

[1] Ruth Eileen Stevens MacBeth passed on April 26, 2009. Her Will (the “Will”) granted, inter alia, a life estate in the family cottage to her daughter, Wendy MacBeth. All costs associated with the cottage (taxes, insurance, maintenance, etc.) were to be borne by Wendy. Upon Wendy’s death, the cottage would devolve to Wendy’s brother, John MacBeth. If John predeceased Wendy, then title would be transferred to “his issue in equal shares per stirpes.” John’s daughters, Chloe Py-MacBeth and Maya MacBeth are therefore contingent beneficiaries.

[2] Wendy has advised the estate trustees that she no longer wishes to incur the expense of the cottage, and she no longer wishes to use it. The Will does not contemplate the estate maintaining the cottage. Nor does the Will specify how the estate trustees are to deal with the cottage in the event Wendy disclaims her interest while alive.

[3] Accordingly, the estate trustees bring an application for directions as to whether the Will permits the sale of the cottage and, if so, how are the proceeds of sale to be administered (“Directions Application”).

[4] John brings a separate application (the “Accounting Application”) seeking an order (a) that the estate trustees file an application to pass their accounts; and (b) the Accounting Application be joined and consolidated with the Directions Application.

[5] Given the nature of the relief sought, the Accounting Application was argued first.

[6] At the outset the estate trustees advised they consented to an order requiring them to pass the estate accounts. Accordingly, the only issue for me to determine is whether the two applications ought to be joined.

Positions of the Parties

[7] John submits that the applications are interrelated and should be heard at the same time. Central to both is the passing of accounts, and there is a risk of inconsistent findings if joinder is not granted. Specifically, the conduct of the estate trustees will be considered both in the passing of accounts, and the issue of the sale of the cottage.

[8] The estate trustees disagree. In their view, the Directions Application deals strictly with the interpretation of the Will, and whether they can sell the cottage. It is not an application to determine the conduct of the estate trustees. The passing of accounts is a judicial enquiry into the financial affairs of the estate, and it is there that the conduct of the estate trustees will be assessed.

The Law

[9] Rule 6.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), provides for consolidation of actions, to be tried at the same time or one immediately after the other:

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.

[10] Master Dash set out a list of principles to consider in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18:

(a) the extent to which the issues in each action are interwoven;

(b) whether the same damages are sought in both actions, in whole or in part;

(c) whether damages overlap and whether a global assessment of damages is required;

(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

(e) whether the parties the same;

(f) whether the lawyers are the same;

(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;

(h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

(i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

(j) the litigation status of each action;

(k) whether there is a jury notice in one or more but not all of the actions;

(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

(m) the timing of the motion and the possibility of delay;

(n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

(p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

(q) whether the motion is brought on consent or over the objection of one or more parties.

Analysis

[11] Applying these principles, I find that the applications should not be joined. The issues are interwoven only by dint of them both arising out of Ruth’s death. There is no question of law in common between the two.

[12] Whether the Will can be interpreted to permit the sale of the cottage entails a discrete examination into that specific question. The focus of a passing of accounts is vastly different. There is no realistic risk of inconsistent findings.

[13] John has fashioned an argument that the conduct of the estate trustees is relevant to the issue of the sale of the cottage. This is so because the cottage has fallen into disrepair due to their inaction, and may fetch a lower price on the open market. Recall that the Will does not provide for the estate to pay the expenses associated with the cottage. In any event, if the conduct of the estate trustees has served to dimmish the value of the cottage, that is an issue to be determined when the passing of accounts is adjudicated.

[14] There will be no overlapping of evidence among the proceedings. The interpretation of the Will would require little, if any, evidence. Of necessity, there will be an abundance of evidence relied upon at the Passing Application.

[15] Although both proceedings were commenced within six months of each other, the forward trajectory of each will not be in lockstep. Based on the information before me, the Passing Application will be strongly contested, and it will take time to prepare affidavits, conduct cross examinations, etc. It is conceivable that the passing will not be heard until late 2023, or early 2024. The Directions Application could be heard immediately. Ordering the proceedings be heard together would see the cottage sitting virtually empty and falling into further disrepair. Further, there are taxes to be paid on the cottage, and the Will is silent as to who should bear this expense.

[16] The Directions Application is a straightforward legal analysis. The issues in the Passing Application will be complex.

[17] A decision in one application will not put an end to the other application, nor will it narrow the issues or increase the likelihood of settlement.

[18] I can conceive of no costs savings if the proceedings are tried together. It is, however, likely that the value of the estate would be diminished by trying the actions together, given the state of the cottage, which may increase litigation costs overall, thereby prejudicing all beneficiaries.

Conclusion

[19] For the foregoing reasons, John’s application to join the proceedings is dismissed.

[20] The estate trustee’s application is adjourned to January 10, 2023 to be argued on the merits.

Costs

[21] Costs of this motion are reserved to the Passing Application.

CASULLO J.

Date: November 1, 2022