Metcalfe v. Macdonell, 2024 ONSC 5270

Court File No. CV-24-96064

SUPERIOR COURT OF JUSTICE

B E T W E E N:

METCALFE et al Plaintiffs

• and -

MACDONELL Defendant

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE P. E. ROGER on August 27, 2024, at OTTAWA, Ontario

APPEARANCES:

M.Z. Black Counsel for the Plaintiffs

T. Loeffer-Vulper agent for C.J. Craig Counsel for the Defendant

TUESDAY, AUGUST 27, 2024

R E A S O N S F O R J U D G M E N T

ROGER, J. (Orally)

THE COURT: The issue on this application is who should be the estate trustee of the estate of Laura Metcalfe-MacDonell. The other issues raised in the pleadings to date are not in contention today.

For reasons that follow, I have decided that the estate trustees should be Derek Stanley Metcalfe and Richard Cotnam.

The Court’s power to appoint or to remove trustees is set out in the Trustee Act. The applicable law is well established and is not disputed by parties who essentially rely on the same cases. Broadly stated, Courts are reluctant to interfere with a testator’s choice of estate trustee and do not do so lightly. It should occur on clear evidence that there is no other course of action. The Court is guided primarily by the welfare of the beneficiaries, which is its main concern, and it must be shown that the non-removal will likely prevent the trust from being properly executed. Friction alone is not a reason for removal. The question is whether friction is of such a nature or of such a degree that it will likely prevent the administration of the trust or stated differently, whether it will be difficult for the trustee to act with impartiality not whether in fact the trustee would or would not do so. In providing this overview of the law, I have relied on cases provided to the Court by both parties.

The respondent agrees that he should not be a trustee and argues that neither should the applicant, Derek Stanley Metcalfe, because the respondent argues Mr. Metcalfe is in a conflict of interest arising from his residual beneficiary status and because he is biased against the respondent. In support of this, the respondent points to the content of Mr. Metcalfe’s affidavits and to Mr. Metcalfe’s actions relating to the funeral arrangements and related events. He argues that all of this constitute sufficient evidence of animosity to show that Mr. Metcalfe will not be able to act impartially or that it would be sufficiently difficult for him to do so.

While it is apparent that Mr. Metcalfe does not like Mr. MacDonell, the evidence does not rise to a level sufficient to show that Mr. Metcalfe’s removal is required for the welfare of the beneficiaries or that Mr. Metcalfe would if he remains prevent the trust from being properly executed. In fact, despite Mr. Metcalfe’s apparent feeling towards Mr. MacDonell, the evidence to date shows that Mr. Metcalfe has tried to move the estate along. The dislike of Mr. Metcalfe towards Mr. MacDonell, apparent in Mr. Metcalfe’s affidavit, is less than what occurred in those cases where the trustee was removed and the evidence to date does not clearly show that it will be difficult for Mr. Metcalfe to act with impartiality, as it did in the Clayton v. Clayton 2021 ONSC 5811 decision.

Furthermore, although Mr. Metcalfe’s views of Mr. MacDonell are long held, the evidence is not sufficient to show that this will impact their dealings to such an extent that the non-removal of Mr. Metcalfe would prevent the proper execution of the trust.

The language in Mr. Metcalfe’s affidavit establishes that Mr. Metcalfe does not like Mr. MacDonell and that he does not hold him in high esteem. However, the language in his affidavit does not rise to a level that would show a lack of impartiality. Similarly, the facts relating to the competing funeral arrangements made be Mr. Metcalfe are regrettable, and are not condoned by this Court, but they may be explained by the deceased’s wishes and by the family’s frustration that her wishes were not, in their view, being followed by Mr. MacDonell. In any event, all of this considered cumulatively does not rise to clear evidence that Mr. Metcalfe will have difficulty impartially administering the trust.

Consequently, the orders sought may issue.

I note, simply for the record because it is not disputed, that the evidence establishes that Mr. MacDonell should be removed as trustee. He consents to this, and the Court agrees that he should be removed. The distinction is that the evidence relating to Mr. MacDonell shows that if he remains as a co-trustee the administration of the trust will be prevented. The distinction is how Mr. MacDonell, on the evidence presented, has repeatedly been reluctant to provide requested information and to cooperate with whatever efforts were attempted to proceed with the administration of the estate, although on a very preliminary basis, considering and despite the parties’ disagreement about who the estate trustees should be, which I appreciate created a difficulty.

... DISCUSSIONS REGARDING DETAILS OF ORDER

THE COURT: Reasons on Costs.

What is fair and reasonable in the circumstances of this case is to order costs in the all-inclusive amount of $19,600 payable by the respondent personally, or to be deducted from his share of the estate. I am not ordering the respondent to pay this forthwith or within a certain amount of time, I am ordering these costs to be deducted from his share of the estate.

For your information, I did not include the amounts from Mann and Partners because these seemed to relate to broader issues and not to the specific issues before the Court. I did include two additional hours at Mr. Black’s hourly rate, added the HST, and then I calculated this on a partial indemnity basis at 60 percent of the fees. All the disbursements were allowed and if you do the math, it should arrive at about $19,608 which I rounded to $19,600.

I have not awarded costs on a higher scale as was sought by the successful applicant and did not order the difference between the lower scale and the high scale either on a substantial or full indemnity which was sought to be paid from the estate, because I did find when I reviewed the evidence that some of the allegations and some of the facts that were contained in the applicant’s affidavits were not relevant to the issues before the Court and probably resulted in this being opposed or, if not, contributed to additional costs over the content of the affidavits, and to some of the examination that was related or associated with that. As a result, I did not order costs on a higher scale but instead, as indicated above, I ordered costs on a partial indemnity basis.

The partial indemnity costs are ordered personally because considering the circumstances of this case it would be inappropriate and unfair to order them to be paid by the estate because this would mean that all parties would be sharing in the costs when two trustees supported a position and one trustee unsuccessfully opposed that position.

Finally, I note that the costs that were sought by the applicant are reasonable and proportionate to the complexity of the issues raised in this matter. This is corroborated by the fact that the costs incurred by the respondent are quite comparable, slightly higher, but quite comparable to those of the applicant.

...END OF REASONS FOR JUDGMENT

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Megan MacMillan, certify that this document is a true and accurate transcript of the recording of Metcalfe et al. v. MacDonell, in the Superior Court of Justice, held at OTTAWA, Ontario, on Tuesday, August 27, 2024, taken from Recording No. 0411_MR56_20240827_085305__10_ROGERP.dcr, which has been certified in Form 1.

Date (electronic signature of authorized person)