Court File and Parties

COURT FILE NO.: 2023-332E (Kingston) DATE: 20231115 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Robert Emanuel James (deceased)

BEFORE: Mr. Justice Graeme Mew

HEARD: 15 November 2023, at Kingston (in writing)

Endorsement

[1] An application by William J. F. Bishop for a certificate of appointment as estate trustee with a will in the estate of Robert Emanuel James, deceased, was referred to me, pursuant to Rule 74.14 (4) of the Rules of Civil Procedure, to consider whether the application raises an issue that requires determination by a judge.

[2] William Bishop is a disbarred lawyer. I determined that the circumstances presented did raise an issue for determination by a judge, namely whether the court should exercise its inherent discretion to refuse Mr. Bishop’s application. In an endorsement dated 19 September 2023, I set out my reasons for coming to this view and directed that Mr. Bishop, or any other person who would be affected by a rejection of Mr. Bishop’s application, was at liberty to bring a motion for further directions within 28 days, failing which the application would be finally determined by me without further notice to Mr. Bishop or any other party affected.

[3] By a notice of motion dated 17 October 2023, the “heirs of Robert Emanuel James” asked the court “to grant the retention of Mr. William Bishop as the executor of the estate of Robert Emanuel James (deceased)”.

[4] In the paragraphs that follow, I explain why Mr. Bishop’s application should be rejected.

The Will

[5] Robert Emanuel James died on 8 April 2023. He had made a will on 7 September 2022, in which his friend Eleanor Strachan-Weekes was appointed as executrix and trustee of his will.

[6] On the backsheet of the will, in a place and in the style that one would normally expect to see the name of a lawyer (if the will had been prepared by a lawyer), there appears the name and address of William J. F. Bishop, “Consultant”. The signing of the will was witnessed by Wilda Harrison and William J. F. Bishop.

[7] On 10 April 2023, two days after Mr. James died, Eleanor Strachan-Weekes renounced her right to a certificate of appointment of estate trustee with a will.

[8] On 30 April 2023, four persons entitled to a share of the distribution of the estate of Mr. James signed consents to the application of Mr. Bishop. A fifth individual signed a consent on 2 May 2023.

William Bishop

[9] In 2012, a Law Society hearing panel found Mr. Bishop guilty of professional misconduct by participating in or knowingly assisting in dishonest and fraudulent conduct by his vendor/purchaser clients and others in obtaining mortgage funds under false pretenses in connection with fourteen transactions: 2012 ONLSHP 87. That decision was upheld by the Law Society Tribunal Appeal Division (2014 ONLSTA 19), and by the Divisional Court (2014 ONSC 5057).

[10] Although Mr. Bishop was permanently disbarred, the Divisional Court, at para. 28 of its decision, stated that there did not appear to be any real concern that he would repeat the conduct that caused him to lose his licence to practise law. However, the court also held that this fact did not detract from “the pressing need to send a consistent message that engaging in fraudulent conduct by a lawyer is a matter that will not be tolerated because of its impact on the profession as a whole”.

The Heirs of Robert Emanuel James

[11] No evidence has been filed by the heirs of Robert Emanuel James in support of their motion. The grounds for their motion are stated on the notice of motion as follows:

Mr Bishop is a family friend of many years and was a long-term friend, confidant and advisor of the deceased Robert Emanuel James, who passed away on April 8, 2023. Mr James relied on Mr. Bishop for many personal, professional and legal matters. Mr James never lost confidence in Mr. Bishop, despite the disbarment of Mr. Bishop from the Law Society of Upper Canada. Mr Bishop continued to advise Mr. James and the family members of Mr. James on important matters. All of the five heirs of Mr. James named in the will of Mr James (Irma Marcia James, Robert Rap James, Kathy James, Lois Breadner and Ivorine Harrison) have discussed the matter thoughtfully and thoroughly and have come to the conclusion that Mr. Bishop is the most trusted and qualified person to continue his work as executor of Mr. James’s estate. He has shown integrity, competence and thoroughness with his dealings with the heirs and financial institutions of the deceased and should be allowed to continue this work to the benefit of heirs and the process of probate and affairs of the estate.

Issue

[12] Should the court exercise its inherent jurisdiction to reject Mr. Bishop’s application for a certificate of appointment of estate trustee with a will in the estate of Robert Emanuel James, deceased?

Discussion

[13] I am not aware of any authority which holds that the removal of an individual’s licence to practise law automatically disqualifies that individual from acting as an estate trustee.

[14] Ian M. Hull and Suzana Popovic-Montag, in Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), write, at p. 249, that the Ontario Superior Court of Justice has inherent jurisdiction to remove and appoint trustees and to pass over executors named in a will. As a matter of practice, however, courts are reluctant to interfere with a testator’s expressed intention as to who should act as trustee of the testator’s estate. Similarly, the prevailing view is that past misconduct on the part of a trustee is not a basis for a court interfering with a testator’s choice of personal representative unless there are grounds for finding that the interests of the estate are likely to be endangered or the estate will not be properly administered: St. Joseph’s Health Centre v. Dzwiekowski, 2007 ONSC 51347.

[15] That said, former lawyers are prohibited from providing legal services as defined by the Law Society Act, R.S.O. 1990, c. L.8.

[16] Section 1(5) of the Law Society Act states that a person provides legal services “if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of the person”. Subsection 6 contains a non-exhaustive list of what are legal services, including giving “a person advice with respect to the legal interests, rights or responsibilities of the person or another person”, or if a person selects, drafts, completes or revises, on behalf of a person, “a testamentary document, trust document, power of attorney or other document that relates to the estate of a person”.

[17] It will be for others to decide whether aspects of Mr. Bishop’s involvement with the settling of Mr. James’ will or the provision of advice to him or his heirs amount to the unauthorised practice of law, contrary to the Law Society Act. Suffice it to say that the appearance of his name on the backsheet of the will, his presence as a witness to the will, the renunciation by the designated estate trustee just two days after the death of Mr. James, the consent of beneficiaries – within a matter of weeks after Mr. James died – to Mr. Bishop’s application, and the statement by the heirs that after his disbarment, “Mr Bishop continued to advise Mr. James and the family members of Mr. James on important matters” are factors that certainly raise questions about the nature and extent of his involvement, and relationship, with Mr. James and members of his family.

[18] Estate trustees play an important role in the administration of estates. This court, in turn, has responsibility for grants of probate or letters of administration: Estates Act, R.S.O. 1990, c. E.21, s. 7(1) (as amended). This includes consideration of applications for appointment of estate trustees with, or without, a will.

[19] As already alluded to, the St. Joseph’s Health Centre case states, at para. 28, that the sanction of removal of a trustee – or, by analogy in this case, declining an application for appointment – is intended not to punish trustees for past misconduct but, rather, to protect the assets of a trust and the interests of the beneficiaries.

[20] Mr. Bishop would no doubt say that there is no evidence that he would act contrary to the interests of the estate or its beneficiaries. The Divisional Court found as much. And Mr. Bishop clearly enjoys the confidence of Mr. James’ heirs.

[21] The fact nevertheless remains that Mr. Bishop is an individual who has been adjudicated to have participated, or knowingly assisted, in dishonest and fraudulent conduct. His licence to practise law has been revoked. As a result, he is no longer entitled to the presumption, without question, of being a person of integrity, probity and trustworthiness.

[22] Furthermore, Mr. Bishop was not nominated as estate trustee by the testator. Had he been, the views expressed in in Macdonell, Sheard and Hull on Probate Practice and by this court in St. Joseph’s Health Centre, would potentially result in the testator’s wishes prevailing over other concerns about the suitability of the appointment.

[23] In the decision on appeal rendered by Nordheimer J. on behalf of the Divisional Court, in upholding the penalty of revocation of Mr. Bishop’s licence to practise law, it was noted that, of the purposes for revoking a lawyer’s licence in such cases (quoting the English Court of Appeal in Bolton v Law Society, [1994] 1 W.L.R. 512, at p. 518), the most fundamental reason of all was:

[T]o maintain the reputation of the solicitor’s profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.

The Court continued, on p. 519, that the “essential issue” is “the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness.”

[24] Mr. Bishop’s application pitches the wishes of the heirs, to have their trusted long-time friend, confidant and adviser appointed as estate trustee, against the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law.

[25] The circumstances, while not indicative of any future conduct on Mr. Bishop’s part which would injure the interests of the Estate, do raise a concern that aspects of his involvement with the late Mr. James and his estate at the very least skirt around the fringes of the unauthorised practice of law, and quite possibly cross the line completely. And Mr. Bishop has offered no evidence to allay the court’s concerns regarding his involvement with this estate. This weighs heavily against his application.

[26] I find that the court cannot simply allow Mr. Bishop’s application because that is what the heirs want. He has lost the privilege of practising law. He is precluded from providing legal services, which includes drafting wills for other people or advising them on their legal interests, rights or responsibilities. While, as I have said, there is no principle or rule precluding a disbarred lawyer from being appointed as an estate trustee, Mr. Bishop’s application is made against a backdrop where there are ample grounds to believe that he may indeed have engaged in precluded activities.

[27] The Law Society Act requires the Law Society, as the regulator of lawyers and paralegals in Ontario, inter alia, to ensure standards of learning, professional competence and professional conduct, and to protect the public interest. That, coupled with this court’s responsibility to maintain the rule of law and promote confidence in the administration of justice, militates against the court becoming an accessory to conduct which undermines the public interest in having effective regulation of the legal profession and prohibiting disbarred lawyers from providing legal services.

[28] Taking into account all of the circumstances, this is one of those rare cases where the court should invoke its inherent discretion to decline an application for the appointment of an estate trustee.

Disposition

[29] Mr. Bishop’s application for appointment as an estate trustee of the estate of the late Robert Emanuel James is dismissed.

Mew J. Date: 15 November 2023