Court File and Parties

COURT FILE NO.: CV-17-00010421-00ES DATE: 20230719 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF MARIAN MARTIN, deceased

RE: ROBERT MARTIN (also known as Robert C. Martin Sr.), in his capacity as Estate Trustee of the estate of Marian Martin, Applicant (Moving Party)

AND:

MARIAN MARTIN (also known as Marian Martin Jr.), in her personal capacity, Respondent (Responding Party)

BEFORE: C. Gilmore, J.

COUNSEL: Jordan Oelbaum for the Moving Party Marian Martin on her own behalf

HEARD: July 17, 2023

Endorsement

Background

[1] The Applicant is the Estate Trustee for the Estate of his mother who died on November 17, 2016. The Respondent is the Applicant’s sister Marian. The Applicant, Respondent and their two siblings are beneficiaries of the Estate.

[2] The pleadings in this matter are framed in the Order of Justice McEwen dated June 6, 2019. The Respondent has brought a motion to amend the 2019 Order and add further issues for the upcoming trial including a claim that the parents agreed to make mutual wills, the validity of the forfeiture clause in the mother’s Will, and how the upcoming trial is to be formatted.

[3] The motion was originally ordered by Justice Dietrich to be heard on January 3, 2023. The matter came before me, and the Respondent sought an adjournment for medical reasons. The Applicant opposed the adjournment based on what the Applicant alleged were chronic delays on the part of the Respondent and multiple changes of counsel which had caused further delays.

[4] In my reasons on the adjournment request dated January 3, 2023 I found that medical evidence provided by the Respondent was deficient but that since the trial was not scheduled until April 2024, there was no prejudice to the Applicant in granting an adjournment with terms. The terms were as follows:

1. The Respondent to deliver her motion material by April 28, 2023.
2. The Applicant to deliver any supplementary motion material by May 26, 2023.
3. Any reply material from the Respondent to be delivered by June 9, 2023.
4. Cross-examinations to take place the week of June 12, 2023

[5] The motion was rescheduled for July 17, 2023 for two hours peremptory on the Respondent. The Respondent was also ordered to pay costs of $1,000.

[6] On January 31, 2023 the matter returned before me on a motion for removal by the Respondent’s counsel. While I granted the Order sought, I expressed concern as to how the removal of the Respondent’s counsel might affect the schedule I had ordered on January 3, 2023 and made the following comment in my endorsement dated January 31, 2023:

I am concerned about the status of that motion given the history of delay in this matter. As such, if Ms. Martin does not file her motion material by April 28, 2023 as ordered on January 3, 2023, the motion date of July 18, 2023 is to be vacated. Further, Ms. Martin must pay the costs ordered in my January 3, 2023 endorsement by July 1, 2023 or she will not be permitted to proceed with her motion.

[7] The Respondent failed to file her motion material by April 28, 2023 although the $1000 in costs was paid. As such, and in accordance with the terms of my January 31, 2023 endorsement, counsel for the Applicant contacted the Trial Coordinator and vacated the motion and scheduled a Case Conference for July 17, 2023 for 30 minutes.

[8] On May 8, 2023 counsel for the Applicant received communication from a lawyer who indicated he may be retained by the Respondent and would follow up after he had completed a trial commitment. Nothing further was heard from that counsel.

[9] The pre-trial for this matter is scheduled for March 6, 2024 with the trial to begin on April 22, 2024 for five days. Productions by the Applicant are complete. The Respondent has failed to answer any of the undertakings she gave at her examination for discovery held on December 31, 2021.

The July 17, 2023 Case Conference

[10] The Applicant has filed a Case Conference brief in which he requests that the Respondent’s motion be vacated, that the reserved trial time be reduced from five days to three days and that the pre-trial date be moved up.

[11] The Applicant also requests costs thrown away of $20,741.15 from the Respondent. The Applicant submits that the Respondent’s motion was brought purely to delay matters and was without merit. Further, the Respondent’s Notice of Motion was served on September 27, 2022 but the Respondent has never filed any supporting materials for her motion. The Applicant has had to prepare for the motion, deal with adjournments, attend through multiple counsel changes and all the while no progress has been made on his own Application.

[12] The Respondent attended the Case Conference by telephone. She told the Court she had internet issues and could not participate via Zoom. She called in at 10:07 a.m.

[13] I permitted the Respondent to make submissions at the Conference despite the fact that she had not filed a brief nor complied with my litigation timetable in relation to her own motion.

[14] The Respondent agreed that she had had three previous counsel and that this matter has been going on for five years. She maintains that there are several important outstanding issues which have never been dealt with including the following:

1. Appointment of an ETDL.
2. The production of deceased’s diaries.
3. Appraisals for valuable property owned by the Estate
4. Financial irregularities which have never been investigated.
5. Documents and funds misappropriated by the Estate Trustee.

[15] I asked that the Respondent provide her submissions on Mr. Oelbaum’s request for costs. She reverted to a discussion related to the diaries. When I redirected her, she advised that would be appealing any Order for costs. She did not comment on the quantum, scale or reasons for the costs although she was invited to do so.

[16] Mr. Oelbaum responded to the Respondent’s concerns and advised that in fact one of the Respondent’s previous counsel, Mr. Friedman served a motion for appointment of an ETDL. The Applicant filed an extensive responding record. Mr. Friedman then removed himself from the record and the motion was never dealt with. The costs of that aborted motion have never been addressed.

[17] The relevant contents of the deceased’s diaries have been produced in the Applicant’s sworn Affidavit of Documents which was served on Mr. Friedman. The Respondent is welcome to examine the original diaries at Mr. Oelbaum’s office. I directed that Mr. Oelbaum send an electronic copy of the Affidavit of Documents to the Respondent forthwith.

[18] Mr. Oelbaum did not respond to the balance of the issues raised by the Respondent as he submitted they are not relevant to today’s conference and his requests.

Analysis and Reasons

[19] The Respondent has been indulged thus far and granted adjournments based on medical grounds and changes of counsel despite the fact that she has never filed a Responding Record in this matter nor any supporting material for her own motion.

[20] The deceased died over six years ago. The Application was commenced in 2017. A motion had to be brought to require the Respondent to attend virtual examinations for discovery. A Motion for Directions had to be brought by the Applicant to set a date for a hybrid trial as the Respondent refused to agree to setting down the matter until her motion had been heard.

[21] The Applicant filed extensive material in response to the Respondent’s motion to appoint an ETDL. That motion was never pursued. The Applicant filed a motion record in response to the Respondent’s motion (which is in issue at this Conference) despite the Respondent not filing any material in support of motion. In summary, the Respondent’s actions/inaction have forced the Applicant to take costly steps in this litigation which should not have been necessary.

[22] The delays end here. The Estate has incurred enormous costs to move this matter along in the face of claims by the Respondent which, on their face, appear to lack merit. The matter will be moved forward to trial and the Respondent’s motion vacated on terms. The Respondent will also be required to file her Responding material in the within Application failing which the Applicant may take certain steps as set out below.

[23] I have reviewed the Applicant’s Bill of Costs and I agree that costs are appropriate in this case. The delays, time and preparation associated with the costs were all avoidable and unnecessary and caused solely by the Respondent. Given all of the above, I make the following Orders:

Orders

1. The Respondent’s motion is hereby vacated, and she is not permitted to bring any further motions until all costs ordered have been paid.
2. The Respondent is to pay costs thrown away of $15,000 for the Respondent’s motion. This does not include the costs of the aborted ETDL motion.
3. The trial time is reduced to three days commencing April 22, 2024. The evidence in chief will be by affidavit (including that of Mr. Atin) and the parties may be cross-examined in person as requested or as directed by the Court.
4. The pre-trial date is moved to February 5, 2024 at 10:00 a.m. for one day.
5. The Respondent must serve and upload to Caselines her Responding record by November 30, 2023. If she fails to do so, the Applicant may move to have his Application heard by me in writing on an unopposed basis.

C. Gilmore, J. Date: July 19, 2023