Court File and Parties

COURT FILE NO.: CV-23-705379-00ES DATE: 2023-11-30

ONTARIO SUPERIOR COURT OF JUSTICE (ESTATES LIST)

IN THE MATTER OF THE ESTATE OF SUSAN LAVIOLETTE, deceased

RE: JENNIE ARMSTRONG personally and as Estate Trustee of THE ESTATE OF SUSAN LAVIOLETTE, and WAYNE LAVIOLETTE personally, Applicants

-and-

THE ESTATE OF SUSAN LAVIOLETTE, deceased, KAREN LAVIOLETTE personally and as alternate Estate Trustee of THE ESTATE OF SUSAN LAVIOLETTE, and ROBERT BALDWIN, Respondents

BEFORE: FL Myers J

COUNSEL: Kimberly Whaley and Nima Hojjati, for the applicants J.P. Zubec for Joshua Vickery, for Karen Laviolette Tony Antoniou, for Robert Baldwin

HEARD: November 30, 2023

ENDORSEMENT

[1] I adjourned the case conference heard on November 20, 2023 to today ostensibly to resolve the issues around the appointment of an ETDL being sought by the applicants. I was told then that the issues dealing with the deposit of the will with the court (to remove Mr. Baldwin from the litigation) and a schedule, were effectively resolved.

[2] The deceased was respectively the daughter and the sister of the applicants. The applicants lived with the deceased and say they were and are her dependents. They have brought this application for dependents’ relief under Part V of the SLRA.

[3] The mother is the first-named ET in the deceased’s will. She cannot accept the duties of the position while bringing a dependant’s relief claim against the estate.

[4] The respondent sister Karen Laviolette is the alternate ET named in the will. She is the economic target of the application. The applicants are trying to increase their share of the assets of the estate at the cost of Ms. Laviolette’s share of the residue.

[5] On the face of it, Ms. Laviolette does not appear to have a conflict of interest with the estate as to the relief sought by the applicants. Perhaps she could be ETDL? But, as in any contested litigation among beneficiaries, there is a concern to ensure that the assets of the estate are protected from misuse by the battling parties.

[6] It seems to me that with an estate with limited assets like this one, the parties should be able to cooperate in their mutual interests to avoid the cost of a full-on, independent ETDL. Perhaps some preservation orders with transparency might go a long way to insulate the estate from the litigation. Or perhaps not. The parties need to communicate to formulate positions on narrowed issues.

[7] The applicants asked me to appoint an ETDL today. Under Rule 50.13 (6) the court has authority to appoint an ETDL summarily at a case conference. However, in my view, the court should ensure that the responding party has proper notice of the request and has an opportunity to be heard both on the process and the substance of the request. With Mr. Vickery away, that probably has not happened yet.

[8] Although there is consent to an order for both the deposit of the will with the court and implementation of a litigation schedule, in my view I should only grant the former order today. A schedule should take into account the need for a motion for an ETDL, if any, and the applicants’ expressed desire to accelerate mediation before too much cost has been incurred in the litigation.

[9] I adjourn this hearing to December 7, 2023 at 9:15 a.m. before me. At that case conference, I will consider the request to appoint an ETDL and any submissions about whether a motion ought to be required before considering the request. There are mid-point options to have some evidence exchange and/or written submissions short of a full motion.

[10] Each case should get the procedure it needs and nothing more.

[11] I mentioned to Mr. Zubec that his client is in a bit of a Catch-22 on the ETDL issue. Arguably, the more she submits that she needs contested evidence to deal fully and fairly with adversarial issues in the proceeding, the more she may be establishing the desirability of an ETDL. An ETDL is most needed in the most adversarial of cases. If the parties can cooperate, they usually can create a win-win option to suit the needs of all. This is one of many areas in civil litigation where adversarial parties each benefit through cooperation in a classic example of the prisoner’s dilemma.

[12] I am concerned that little seems to have happened since November 20, 2023. Mr. Vickery is away. Mr. Zubec had no meaningful instructions on the ETDL issue. Apart from asserting a need for a motion, he was not empowered with the information or instructions to negotiate or even express the issues in a constructive manner today. I hasten to repeat my statement from the case conference that I am not criticizing Mr. Zubec as he did what he could with what he had.

[13] I leave for the December 7, 2023 case conference whether there ought to be any costs awarded for this appearance and for that appearance.

[14] In the interim, the court expects counsel to communicate effectively and to cooperate to try to reach a common-sense resolution of the parties’ process needs (if not the merits of their claims). The next order should go on consent to implement a process to protect and administer the assets of the estate to the satisfaction of all parties while the litigation proceeds on an agreed schedule.

[15] If there is no consent, the parties are on notice that I will consider appointing an ETDL or whether other process steps are needed before that issue should be considered.

[16] If not clear already, the court expects all to abide by and apply the 3 C’s of communication, cooperation, and common sense. As estates applications under Rule 75 are managed by customized directions, the parties and their counsel are expected to understand that all are entitled to an efficient, affordable, and fair process. Reaching agreement on process issues and directions is especially important in case managed estates matters if timely and affordable resolution is to be provided to all.

[17] The parties should expect costs sanctions to be available in the event that a failure to abide by the 3 C’s leads to unreasonable or unnecessary steps in the litigation.

FL Myers J

Date: November 30, 2023