Court File and Parties

NEWMARKET COURT FILE NO.: CV-23-1606-00 DATE: 20240809 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NORBERT TYLL Applicant/Responding Party

– and –

RUEDIGER TYLL, WOLFGANG TYLL, THE ESTATE OF WALTRAUD TYLL and THE ESTATE OF ERIC TYLL Respondents/ Moving Party

Counsel: No one appearing for Norbert Tyll Jason A. Schmidt for the Moving Party, Wolfgang Tyll

HEARD: July 31, 2024

Reasons for Decision

CHARNEY J.:

[1] The Respondent, Wolfgang Tyll (“Wolfgang”), brings this motion for:

a. an Order removing Norbert Tyll as Estate Trustee for the Estate of Waltraud Tyll; b. an Order removing Norbert Tyll as co-Estate Trustee for the Estate of Eric Tyll; c. an Order appointing Alison Lester as Estate Trustees or Estate Trustees During Litigation for the Estate of Waltraud Tyll and the Estate of Eric Tyll; d. an Order granting Alison Lester as the Estate Trustees During Litigation for the Estate of Waltraud Tyll and the Estate of Eric Tyll all the authority granted to the Estate Trustees per Justice Edwards’ Order dated July 19, 2023 and the authority to administer the subject Estates; e. an Order that the applicant/responding party, Norbert Tyll be found in contempt of the Order of Justice Bale dated May 15, 2024; f. an Order that Norbert Tyll shall cure his contempt by: i. within 10 days delivering to each of the beneficiaries of the respondent, The Estate of Waltraud Tyll, an Affidavit to confirm the assets of the Estate of Waltraud Tyll have not been distributed and attaching thereto statements of account for bank accounts and/or assets the Estate of Waltraud Tyll from July 2023 to present; and, ii. delivering to Wolfgang or his counsel copies of any documents he received as a result of the Order of Justice Bale dated May 15, 2024 within ten (10) days of the date of this Order. g. an Order that should Norbert Tyll fail to comply with paragraphs (i) and (ii) above, a contempt hearing shall be held by this Honourable Court.

Facts

[2] The deceased Eric Tyll passed away on May 22, 2016.

[3] The deceased Waltraud Tyll passed away on August 13, 2022.

[4] Norbert Tyll (“Norbert”), Reudiger Tyll and Wolfgang are their adult children.

[5] Norbert is the Estate Trustee for the Estate of Waltraud Tyll. Norbert and Wolfgang are the co-Estate Trustees for the Estate of Eric Tyll.

[6] On June 15, 2023, Norbert commenced this Application for directions pertaining to the administration of the Estate of Waltraud Tyll and directions for the accounting of the assets of Eric Tyll.

[7] On July 19, 2023, Edwards J. made an Order regarding the administration of the Estates of Eric Tyll and Waltraud Tyll. Norbert was appointed as the Estate Trustee for the Estate of Waltraud Tyll, and Norbert and Wolfgang were both appointed as Estate Trustees for the Estate of Eric Tyll. The Order further provided:

16. THIS COURT ORDERS that there shall be no distribution of any of the property or assets of the Estate of Waltraud Tyll to the beneficiaries until further order of this Court, or agreement of the parties.
17. THIS COURT ORDERS that the Estate Trustee shall deliver to each of the beneficiaries of the Estate a statement of assets of the Estate of Waltraud Tyll as at the date of death of the deceased within 60 days of receiving the Certificate of Appointment as Estate Trustee.
18. THIS COURT ORDERS that the Applicant shall provide copies of any documents he receives as a result of this Order to Wolfgang Tyll, or his counsel within 10 business days of receipt of same.

[8] On August 18, 2023, Norbert wrote to Wolfgang’s lawyer to advise him that he would be representing himself in relation to the Application. Norbert served a Notice of Intention to Act in Person on September 25, 2023.

[9] On September 25, 2023, Wolfgang’s lawyer wrote to Norbert to request an update as to the status of his compliance with paragraphs 17 and 18 of the July 19 Order. No response was received. Wolfgang’s lawyer wrote to Norbert again on October 17, 2023.

[10] On October 26, 2023, Norbert responded to Wolfgang’s lawyer and advised him that he believed that he was not in breach of the July 19, 2023 Order.

[11] There was more correspondence between the parties, but they were not able to resolve their differences.

[12] On February 23, 2024, counsel for Wolfgang served Norbert with a contempt motion, alleging that Norbert had failed to comply with the requirements contained in Paragraphs 16, 17 and 18 of Justice Edward’s July 19, 2023 Order.

[13] The motion was heard by Bale J. on May 15, 2024. Norbert was represented by counsel, Ms. Eni Hanxhari.

[14] Bale J. made the following consent Order:

1. THIS COURT ORDERS that within 15 days of the date of this Order, Norbert Tyll will swear and produce to Wolfgang Tyll an Affidavit to confirm the assets of the estate have not been distributed forthwith and provide a statement from the account in which the funds have been invested.
2. THIS COURT FURTHER ORDERS that no later than June 1, 2024 Wolfgang Tyll will provide to Norbert Tyll the documents in his possession as listed in Norbert Tyll’s List of Financial Enquiries of the Estate from 2012-2016.
3. THIS COURT FURTHER ORDERS that the parties shall exchange Affidavits of Documents to be on or before June 28, 2024.
4. THIS COURT FURTHER ORDERS that the parties shall submit to examinations for discovery on or before July 31, 2024.

Compliance with the July 19, 2023 and May 15, 2024 Court Orders

[15] Wolfgang’s evidence on this motion is that he has provided Norbert with the documents in his possession as required by para. 2 of the May 15, 2024 Order.

[16] The evidence also indicates that Norbert has not provided the Estate banking records as required by para. 1 of the May 15, 2024 Order. In June 2024, Wolfgang’s lawyer sent several emails to Norbert’s lawyer requesting these records. He received no reply until July 3, 2024, when Ms. Hanxhari emailed Wolfgang’s lawyer to advise him that Norbert was in the process of finding new counsel.

[17] Ms. Hanxhari did appear on the motion before me to advise the Court that she was no longer retained by Norbert and had no instructions from him, but that he had not yet filed a Notice of Intention to Act in Person despite being advised of this motion.

[18] Norbert did not appear on this motion and has filed nothing in response to the Moving Party’s motion record.

[19] Section 37(1) of the Estate Trustee Act, R.S.O. 1990, c. T23, authorizes the Court to remove an Estate Trustee and appoint another person to act in their place. Section 37(1) provides:

37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.

[20] Rule 75.06(3)(f) of the Rules of Civil Procedure provides for the appointment of an Estate Trustee during litigation.

[21] “A trustee who is in an adversarial position towards a co-trustee or a beneficiary should not normally be left in charge of trust property”: Mayer v. Rubin, 2017 ONSC 3498, at para. 36; Richardson v. Petrie, 2024 ONSC 911, at para. 36; Class v. Smith, 2018 ONSC 623, at para. 40. The record in this case clearly demonstrates that Norbert is in an adversarial position towards Wolfgang.

[22] I am satisfied that Norbert has failed to comply with the terms of Justice Edwards’ Order dated July 19, 2023 and Justice Bale’s Order dated May 15, 2024. No steps have been taken to advance the administration of the Estate of Waltraud Tyll, and Norbert’s recalcitrance to provide the banking records ordered raises a serious concern that he has used or dispersed all or part of the funds belonging to the Estate of Waltraud Tyll, contrary to the July 19, 2023 Order. The evidence satisfies me that allowing Norbert to continue as Estate Trustee will prevent the proper administration of the Estate.

[23] In these circumstances, it is necessary to exercise the Court’s authority to appoint an Estate Trustee during litigation.

[24] I am not, at this stage, going to make any orders in relation to the claim that Norbert is in contempt of Court. The appointment of an Estate Trustee during litigation will, hopefully, enable the other beneficiaries to address their outstanding concerns without the need to go down that road. The motion for contempt will be held in abeyance, and may be brought back before the Court should the Estate Trustee during litigation find it necessary for the Court to address that issue. I am not seized.

Conclusion

[25] Based on the foregoing, I am satisfied that the relief requested by the Moving Party should be ordered.

[26] This Court Orders:

a. Norbert Tyll is removed as Estate Trustee for the Estate of Waltraud Tyll; b. Norbert Tyll is removed as co-Estate Trustee for the Estate of Eric Tyll; c. Alison Lester is appointed as Estate Trustees During Litigation for the Estate of Waltraud Tyll and the Estate of Eric Tyll; d. Alison Lester as the Estate Trustees During Litigation for the Estate of Waltraud Tyll and the Estate of Eric Tyll is granted all the authority granted to the Estate Trustees per Justice Edwards’ Order dated July 19, 2023 and the authority to administer the subject Estates.

[27] Costs are fixed at $4,859 all inclusive, payable by Norbert personally to Wolfgang. Costs are payable within 30 days.

Justice R.E. Charney Released: August 9, 2024.