COURT FILE NO.: CV-24-0049-00
DATE: 2024-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IN THE ESTATE OF GLEN HAROLD RADELET, deceased
Mr. K. Evans, for the Applicant Ryan Venn
Ryan Venn
Applicant
HEARD: February 22, 2024,
at Thunder Bay, Ontario
Mr. Justice S.J. Wojciechowski
Decision On Application
[1] The Applicant is seeking to be appointed as an Estate Trustee for Glen Harold Radelet who died on November 26, 2023 (“the Deceased”). According to an affidavit filed by the brother of the Deceased, Alan Raymond Radelet (“Alan Radelet”), sworn January 10, 2024, the Deceased did not have a will nor a spouse - common-law or otherwise - nor any children, and his only living relative is Alan Radelet. Both parents of the Deceased have also passed away.
[2] Mr. Evans brought an Application under section 29 of the Estates Act, R.S.O. 1990, c. E.21, as amended, claiming there was urgency and an inability to provide an exact value of the estate as part of the grounds for proceeding in this fashion.
[3] Rule 74 of the Rules of Civil Procedure sets out the process for applying for the Appointment of and Estate Trustee. The process in Rule 74 eliminates the requirements of a court hearing and with minor exceptions proceeds by way of appointment by the Estates Registrar rather than the scheduling of a hearing before a judge as occurs with an Application. Where a judge’s review is necessary under Rule 74, such as for the dispensing of an administration bond, that review is conducted in chambers by the judge, through a “basket motion” process, without the need to schedule court, judge and staff time.
[4] Once appointed, the Estate Trustee has all the powers of the deceased owner of property. This process is also designed to ensure that all appropriate parties are notified, including creditors of the estate and those who might have an interest in the estate. In addition, the estate’s administration is more easily monitored by the court and provides a mechanism for interested parties to receive notification of any objection to the manner in which the estate is being administered. An Application pursuant to the Estates Act provides none of those protections and requires more active judicial oversight.
[5] For the reasons set out below, the within Application is denied. The proposed Estate Trustee shall apply for appointment through the process set out in Rule 74.
Reasons
[6] The Applicant requests an order to vacate property owned by the Deceased, and seeks relief against Service Ontario.
[7] Alan Radelet, who claims to be the sole beneficiary of the estate, currently resides in Summerland, British Columbia, and as such has asked the Applicant, Ryan Venn, to seek an appointment as the Estate Trustee. In this regard, Alan Radelet has executed a Renunciation, and has consented to Ryan Venn being appointed as an Estate Trustee Without a Will. He has also agreed that there is no need for the Applicant to file a bond.
[8] The Applicant has agreed to make an Application for a Certificate of Appointment of Estate Trustee Without a Will, but to date has not filed anything with the Registrar’s office. Instead, this Application has been brought seeking the appointment of Ryan Venn as Estate Trustee due to special circumstances as contemplated by subsection 29(3) of the Estates Act, R.S.O. 1990, c. E.21, as amended.
[9] The materials filed and the submissions of counsel for the Applicant suggest that there is some urgency to obtaining the relief which is being sought.
[10] The basis for this Application includes issues relating to real property of the Deceased which are set out in the affidavit of Ryan Venn sworn February 9, 2024, and include the following:
At the time of his death, the Deceased owned a house located at 524 McKellar Street North, Thunder Bay, Ontario, and which is legally described as PT LT 42 PL W72 Neebing Additional as in TBR398046 THUNDER BAY, and being PIN 62078-0150 (“the Property”);
The Property was occupied by the Deceased as of the date of his death, as well as others who were friends or guests of the Deceased, and some or all of these friends or guests are still residing at the Property (“the Occupants”);
It is unknown whether the Occupants are actual tenants who are residing at the Property pursuant to a landlord and tenant arrangement with the Deceased;
There are suspicions that the Occupants who are residing at the Property may be involved in illegal activities, possibly including drug trafficking, and that the Property is being damaged during the current period of occupancy by the Occupants;
After Ryan Venn contacted the Thunder Bay Police Services to discuss his concerns relating to the continued occupancy of the Property, he was advised in an email that while the Thunder Bay Police Services would be happy to assist in the removal of the Occupants of the Property, it was in the best interest of the Thunder Bay Police Services to first obtain judicial authorization to enter this dwelling; and
An affidavit of service confirms that a letter advising the Occupants to vacate the Property was served on Thursday, February 8, 2024, and that on Monday, February 12, 2024, the Occupants were served with the Application Record in this matter, both documents served by providing them to a female occupant of the Property who identified herself as Ocean Wilson.
[11] The Applicant is therefore seeking to be appointed as Estate Trustee without delay so he can deal with the Property in a timely and efficient manner. If the Occupants have no legal right to be there, and if damage to the Property is ongoing, then it is in the best interests of the sole beneficiary, Alan Radelet, to exercise control over the Property as soon as possible.
[12] I have several concerns, however, in granting the relief as sought by the Applicant, and I find that the evidence filed does not amount to special circumstances.
[13] First, in considering the urgency arguments, I note that the Deceased died on November 26, 2023 and counsel for the Applicant was retained on November 29, 2023. Counsel for the Applicant then undertook a search for the will of the Deceased on January 10, 2024, the same day that Alan Radelet swore his affidavit which was filed in support of this Application. A month later, the Application was filed on February 9, 2024, with a return date of February 22, 2024.
[14] The Affidavit filed by the Applicant provides an estimate of twelve (12) weeks for a standard Certificate of Appointment of Estate Trustee Without a Will to be processed and issued in the Thunder Bay jurisdiction. This estimate was then adjusted in oral submissions to be closer to eight (8) weeks.
[15] Had the necessary paperwork been filed under Rule 74 with the Estates Registrar shortly after the Deceased’s date of death, the Applicant would currently be the Estate Trustee and there would be no need for this Application. No evidence was provided which explains why the Application for a Certificate of Appointment of Estate Trustee Without a Will has not been filed to date.
[16] The issues relating to the need to immediately appoint an Estate Trustee are rooted in what is happening at the Property. However, the evidence in support of the nature of the Occupants who continue to reside at the Property is speculative and based upon hearsay and double hearsay.
[17] The affidavit of Alan Radelet which was filed in support of the Application makes no reference to the background of the Deceased nor the Occupants who are occupying the Property.
[18] Instead, the details regarding the Occupants and the background of the Deceased are only found in the affidavit of Ryan Venn.
[19] Ryan Venn’s affidavit suggests that the Deceased had issues with substance abuse based upon Alan Radelet being “generally aware” of the same. Ryan Venn’s evidence also references the suspicion of Alan Radelet that the Occupants have substance abuse issues, and that the Property was being used for illegal activities. Finally, the Applicant’s affidavit provides details of discussions between Alan Radelet and an officer from the Thunder Bay Police Service in which the officer expresses an opinion that the Property is being used for illegal activities.
[20] The court is unaware of why Alan Radelet could not have provided this evidence in his own affidavit, and why it was necessary for Ryan Venn to provide this hearsay and double hearsay evidence through his affidavit.
[21] The activities of the Occupants are based upon observations described in the affidavit of Ryan Venn. First, Ryan Venn states that each time he has driven past the Property he saw “some form of activity occurring”.
[22] Other observations were described to Ryan Venn by a realtor who drove by the Property, but there is no evidence filed directly from the realtor in this regard.
[23] In addition, further observations were relayed to Ryan Venn by a process server who has also not filed any affidavit evidence. A portion of Ryan Venn’s evidence is then based upon the process server’s conversation with an unidentified neighbour, which is another instance of double hearsay. Finally, Ryan Venn’s evidence consists of information he received from the process server who determined the nature of the alleged illegal activities on the basis of the physical characteristics of the individuals he encountered at the Property – one was “very skinny” and another was “visibly not in good shape” - and not due to any observations of illegal activities being undertaken.
[24] With respect to the request for an Order to vacate, Ryan Venn’s affidavit confirms that an email was received from the Thunder Bay Police Service which indicated that it would be in its best interest for this court to authorize the removal of the Occupants. In addition, during argument of this Application, I was advised that the police reached out to the Applicant and advised that they have an increased interest in the Property. However, no evidence was filed which provided details of the “increased interest”, and it is unclear why an Order authorizing the Thunder Bay Police Service to assist in vacating the Property if the Occupants are trespassing and not tenants.
[25] The Applicant seeks to be appointed pursuant to subsection 29(2) of the Estates Act, R.S.O. 1990, c. E.21, which is subject to the language of subsection 29(3) which reads as follows:
(3) Where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate, or where the executor was at the time of the death of such person resident out of Ontario, and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit.
[26] This subsection of the Estates Act provides the court with unqualified discretion to appoint an estate trustee for an intestate estate as deemed appropriate and in the best interests of the administration of the estate. Lagrandeur Estate (Re), 2021 ONSC 3447. But it is unclear why such discretion needs to be exercised in the present circumstances.
[27] According to the evidence filed, Alan Radelet is the only surviving relative of the Deceased. Because he resides in British Columbia and not Ontario, he has provided his consent to the appointment of Ryan Venn as Estate Trustee, and also renounced his right to a Certificate of Appointment of Estate Trustee without a Will in priority to Ryan Venn.
[28] Based upon the documents filed in support of this Application, there is no reason why Ryan Venn will not be appointed Estate Trustee under Rule 74 once the appropriate documentation is filed with the Estates Registrar for the City of Thunder Bay. While the Applicant requests this court to appoint him as Estate Trustee so that he could accurately determine the value of the assets of the Deceased, an estimate of the value of the estate is sufficient. Once the actual value of the estate is known, the Rule provides for supplementary information to be filed together with additional payment of fees or reimbursement of fees paid.
[29] Subsection 29(3) provides relief where no such appointment can be made in the normal course, and in the absence of special circumstances there is no reason to exercise this court’s discretion.
[30] Because of my assessment of the nature of the evidence, it is unnecessary to consider whether or not issues of urgency are properly part of the “special circumstances” analysis.
[31] Finally, this Application also sought relief against Service Ontario, but since there was no service effected upon Service Ontario which provided notice of the relief being sought, no relief in this regard is ordered. Once the Estate Trustee is appointed under Rule 74, the Estate Trustee no longer requires court approval to interact with Service Ontario.
[32] Based upon the foregoing, I do not find that the evidence filed is sufficient to meet the test of special circumstances as set out in subsection 29(3) of the Estates Act.
[33] When the Application for a Certificate of Appointment is filed by the Applicant, the Estates Registrar for the City of Thunder Bay shall direct the application to my attention to address an order dispensing with an administration bond and for any issues requiring judicial oversight as soon as practical.
[34] Application dismissed.
“Originally signed by”
The Hon. Mr. Justice S.J. Wojciechowski
Released: March 5, 2024
COURT FILE NO.: CV-24-0049-00
DATE: 2024-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IN THE ESTATE OF GLEN HAROLD RADELET, deceased
Ryan Venn
Applicant
DECISION ON APPLICATION
Wojciechowski J.
Released: March 5, 2024