Court File and Parties

Court File No.: CV-24-00713776-00ES

Date: 2025-11-05

Superior Court of Justice – Ontario

In the Matter of the Estate of Gerlinde Das Gupta

And in the Matter of the Estate of Elsbed Winkler

Re: Sonya Das Gupta, Applicant

And:

Amit Das Gupta, in his personal capacity and in his capacity as executor of the Estate of Gerlinde Das Gupta and Thomas Sung-Chul Kim in his capacity as substitute executor of the Estate of Gerlinde Das Gupta, Respondents

And Between:

Sonya Das Gupta, Applicant

And:

Amit Das Gupta, in his personal capacity and in his capacity as executor of the Estate of Elsbed Heidela Winkler, The Toronto Humane Society, and Earth Rangers in Woodbridge.

Before: C. Gilmore, J.

Counsel:

• Alexander N. Procope, Counsel for the Applicants
• Amit Das Gupta on his own behalf

Heard: In Writing

Endorsement on Motion to Strike

Introduction

[1] The Applicant seeks an Order striking the Notice of Appearance in the consolidated proceedings of CV-24-00713776 and CV-24-00713777-00ES, dated April 9, 2024. In the event that the Notice of Appearance is not struck, the Applications will be heard on their merits on March 2, 2026, for half a day. Mr. Felker was appointed as Estate Trustee During Litigation (the "ETDL") on January 9, 2025, for a period of 18 months. He has not taken a position on this motion.

[2] The Applicant, Sonya Das Gupta ("Sonya"), is the sister of the Respondent, Amit Das Gupta ("Amit"). Amit and Sonya are the surviving children of their deceased mother, Gerlinde Das Gupta ("Gerlinde"). Amit was named as the Estate Trustee in his mother's Will ("the Gerlinde Estate") and in the Will of a family friend, Elsbed Winkler ("Elsbed" and "the Elsbed Estate"), who is deceased. Elsbed left gifts in her Will to Sonya, Amit and Gerlinde.

[3] Sonya commenced her initial Application against Amit, seeking Guardianship of her mother during her lifetime. After her mother's death in February 2023, Sonya commenced an Application against Amit as Estate Trustee of Gerlinde's Estate. Sonya has sought various relief against her brother in the consolidated Applications, including the following:

a. Challenges to Amit's activities as Attorney for Property and Attorney de son tort and as Estate Trustee for both Estates;

b. Directions to pass over Amit as Estate Trustee and to appoint an Estate Trustee During Litigation;

c. Compelling distributions, an accounting and a passing of accounts for the Elsbed Estate;

d. Declarations regarding the validity of the beneficiary designation dated October 5, 2022, for Gerlinde's RRSP; and

e. Reimbursement for amounts which Sonya alleges Amit wrongly removed or withheld from the Estate.

[4] In the context of requesting this relief, Amit has been ordered to produce various disclosure, responding material and accounting. Sonya submits he has failed to do so. Specifically, Sonya submits that Amit has failed to comply with the order of Sanfilippo J. dated April 26, 2024, the order of Faieta J., dated July 2, 2024, my endorsement of January 9, 2025, and my orders of January 7 and April 22, 2025. Those orders and endorsements required Amit to do the following:

a. File responding material and copies of beneficiary designations in his control by May 16, 2024. Amit has never filed a responding record.

b. Preserve all personal property owned by his mother's Estate, provide an informal accounting as Estate Trustee for Gerlinde's Estate, permit Sonya access to his mother's property at 2-189 Springhead Gardens, Richmond Hill, Ontario (the "condo"), pass accounts for the Elsbed Estate, and collaborate with opposing counsel to set a date for mediation. Amit has never provided a proper accounting for either the Gerlinde or the Elsbed Estate, he removed all his mother's personal property from her condo, he failed to provide Sonya access to the condo despite his agreement to do so and her repeated requests to set a date for an inspection, and he did not respond to requests to set a date for mediation.

c. After he was no longer represented by counsel, I required him to file a Notice of Intention to Act in Person. That endorsement was released on January 9, 2025. Amit has never filed the required Notice.

d. On January 7, 2025, I ordered Amit to vacate his mother's condo and provide vacant possession to the ETDL, Mr. Andrew Felker. Amit refused to vacate on the required timeline and the Sheriff was required to attend.

e. In the same January 7, 2025 order, Amit was ordered to provide a list of his mother's assets and authorize the ETDL to access financial information related to the Gerlinde Estate. Amit did not comply.

f. On April 22, 2025, after ongoing difficulties articulated by the ETDL about Amit's occupation of his mother's condo, I ordered that he could not attend within 100 metres of the condo and that he was to deliver Gerlinde's Will, ashes and all her personal documents to the ETDL. Amit breached this order as will be further described below.

[5] Given Amit's persistent refusal to comply with this Court's orders, and despite many indulgences, Sonya now seeks to strike out his Notice of Appearance. She recognizes that doing so is the equivalent of striking out a defence in an action. However, Sonya submits that persistent non-compliance has fettered the ability of the ETDL to complete his mandate, caused Sonya and the Court considerable expense and delay and has impeded the efficient administration of Gerlinde's Estate.

[6] Given my knowledge of this case and for the sake of efficiency, I agreed to hear the motion in writing. Both sides were given ample time to file their materials, which I have now received.

[7] No Respondent other than Amit filed a Notice of Appearance. The Toronto Humane Society has filed a Submission of Rights to the Court.

[8] For the reasons set out below, I find that Amit's Notice of Appearance must be struck. His persistent non-compliance, breach of court orders and obstruction of the administration of his mother's Estate has resulted in an extraordinary amount of time, expense and effort being spent on an Estate of modest value. The material filed by Amit in response to the Applications is repetitive, unsworn, uncorroborated, insulting towards Sonya, and of little assistance to the Court. The efficient administration of justice and Gerlinde's Estate requires that this matter proceed on an undefended basis.

Background

The Elsbed Estate

[9] Elsbed Winkler was a family friend and godmother to Amit. Sonya was advised by Amit that he was acting for Elsbed as her Attorney for Property in 2016. Prior to Elsbed's death, Amit gave Sonya $40,000 from Elsbed's funds. Gerlinde was also given a gift, but Sonya has never been certain of the amount. Elsbed transferred her home to Amit, allegedly in gratitude for his care for her.

[10] Amit was the Estate Trustee for Elsbed's Estate as per her 2015 Will. Sonya, Amit and Gerlinde were beneficiaries. After Elsbed's death, Sonya received another $10,000 from Amit as a distribution from Elsbed's Estate. Sonya has never received a final distribution or a properly documented accounting for the Elsbed Estate. Sonya has sought, but never received, a passing of accounts for Elsbed's Estate. It is not known if Gerlinde received her share from the Elsbed Estate. Amit insists that his mother did receive her share but there is no evidence of this.

The Alleged Breaches of Court Orders by Amit

[11] Amit was named as Gerlinde's Attorney for Property on December 17, 2021. In 2021, Sonya became concerned about her mother's declining cognition, Amit's management of her financial affairs, and her susceptibility to Amit's influence. She commenced her Application for Guardianship as a result of those concerns.

[12] Gerlinde died on February 16, 2023. Sonya and Amit are the sole beneficiaries of the residue of Gerlinde's Estate and are jointly entitled to her personal property. Sonya was concerned about Amit acting as Estate Trustee. She commenced this Application and the Application with respect to the Elsbed Estate in January 2024. She sought to have Amit passed over as Estate Trustee, and required him to provide an accounting and other relief as set out above.

[13] The first case conference in this proceeding was held on April 26, 2024. Amit was represented by counsel at that time. He was ordered to provide a sworn statement of the value of Gerlinde's assets, file a Responding Record and provide copies of all beneficiary designations by May 16, 2024. Amit failed to comply with the April 26, 2024 order, and in fact has never complied with it other than providing an affidavit setting out some (but not all) of the assets of the Gerlinde Estate.

[14] Amit provided a copy of the purported beneficiary designation for Gerlinde's RIF account dated October 5, 2022. He has never provided copies of any other beneficiary designations despite being aware that Sonya challenged changes to the designations due to her mother's failing capacity in 2021. The prior beneficiary designation for the RIF has since been obtained from TD bank, but only with the ETDL's assistance and authority.

[15] In July 2024, the parties attended a second conference before Faieta J. in which the proceedings were consolidated and further directions were given by the Court. Paragraph 4 of the July 2, 2024 order restrains Amit from selling, dissipating, transferring or disposing of any real or personal property belonging to Gerlinde.

[16] After obtaining vacant possession of the condo, the ETDL confirmed to this Court that Amit removed items from the condo without authority. Amit was warned by the ETDL that if he entered the condo again, the police would be called and he may be charged with trespass. Most of Gerlinde's furniture and possessions were removed from the condo before the ETDL gained access to it. Prior to the ETDL gaining access, Amit was the only one who had access to the condo after Gerlinde's death.

[17] The July 2, 2024 order required Amit to provide Sonya with unfettered access to the condo so she could identify her own personal property that was there, as well as any Estate property. Sonya required a specific time for her to access the condo as she resides in British Columbia. She did not want to fly to Toronto without an agreed upon date and time for access. Despite multiple emails from Sonya's counsel, Mr. Procope, about a date on which Sonya could access the condo, Amit simply never responded.

[18] Amit has never complied with any of the requirements of the July 2024 order with respect to Elsbed's estate, including the order that he pass accounts for the Estate by August 31, 2024, and provide a Responding Record. Amit provided a summary of funds available from the Elsbed Estate and distributions made, but the documents are inconsistent, without backup receipts or vouchers, and far from a proper passing of accounts.

[19] The July 2024 order also required the parties to attend mediation by October 31, 2024. No meaningful response was ever received from Amit or his previous counsel regarding mediation. The mediation has never taken place.

[20] Justice Faieta also ordered Amit to provide an informal accounting of all financial transactions he had undertaken on behalf of Gerlinde for the period from January 1, 2022, to July 2, 2024, with copies of any related documents. This period was extended to commence on January 1, 2021, in the January 7, 2025 order.

[21] Amit provided an affidavit sworn June 28, 2024, though it was of no assistance. The affidavit contained references to multiple unexplained transactions in Gerlinde's accounts, with account numbers redacted and without supporting documents. The accounting also did not reference her vehicle or the contents of her safety deposit box.

[22] Amit's counsel ceased acting for him in August 2024. In September 2024, Sonya's counsel sent Amit links to the Notice of Intention to Act in Person form.

[23] Between August 7 to 12, 2024, Amit sent Mr. Procope 24 emails claiming he was owed reimbursement from the Estate for work and expenses he had incurred on the Estate's behalf. In September 2024, Mr. Procope responded and asked for further information including vouchers, explanations for specific transactions (including a transfer of $100,000 from Gerlinde's account), and another request for a Responding Record.

[24] Amit never specifically responded to Mr. Procope's requests, but did provide some self-generated documents explaining funds he had received from his mother's line of credit, as follows (but without supporting documents):

a. ($9,100) for Funeral expenses paid by Amit;

b. ($500) Xmas gift to Amit;

c. ($25,000) Legal fees reserve from January 2023;

d. ($7,000) Expenses re Gerlinde reimbursement to Amit;

e. ($7,000) Expenses re Amit reimbursement to Amit; and

f. ($28,000) PSW help for Gerlinde to Amit.

[25] A third case conference was held before me on January 7, 2025. I ordered that Amit file his Notice of Intention to Act in Person and that Andrew Felker be appointed as ETDL. I also made various other orders relating to Gerlinde's condo (which Amit still occupied). Amit has never filed a Notice of Intention to Act in Person.

[26] In the January 7, 2025 order, I required that Amit provide the ETDL with a list of Estate assets including documents and records, and that he sign a release authorizing the ETDL to obtain all financial information relating to Gerlinde's Estate. On January 10, 2025, the ETDL sent Amit a specific list of all documents he required in relation to the Estate, including all documents relating to the condo and Gerlinde's income tax, banking and life insurance documents. No release from Amit has ever been provided nor has he provided the documents requested by the ETDL. When the ETDL attended at the condo after the Sheriff secured vacant possession, not a single document was left there. Neither the original Will nor Gerlinde's cremated remains have been provided by Amit, nor has he provided any information on their whereabouts.

[27] On January 10, 2025, the ETDL sent a letter to Amit requiring that he vacate the condo so that it could be readied for sale. The ETDL requested that Amit provide the keys to the condo and that he cooperate.

[28] On April 4, 2025, Mr. Procope advised Amit by email of his intention to seek an order to strike out his Notice of Appearance due to his lack of compliance with previous court orders.

[29] The ETDL emailed Amit on January 15, 2025, advising he had a Writ of Possession for the condo and that Amit must vacate. On February 24, 2025, the ETDL received a Notice of Sale Under Mortgage from TD in relation to the secured line of credit. TD agreed to suspend enforcement so long as the ETDL provided proof that the condo had been listed for sale by April 25, 2025.

[30] On April 1, 2025, Amit sent the ETDL nine emails and requested that he be permitted to stay at the condo until the end of April 2025. In response, the ETDL advised Amit by email that he had sought the assistance of the Sheriff to obtain vacant possession of the condo. On April 8, 2025, the ETDL obtained vacant possession of the condo with the assistance of the Sheriff as Amit refused to voluntarily vacate.

[31] On April 8, 2024, force was required to access the condo as Amit had screwed a bracket between the screen door and the doorframe to prevent access. The doorframe was damaged as a result.

[32] On April 9, 2025, the ETDL was contacted by the real estate agent he had engaged to prepare the condo for sale. The real estate agent was alarmed to find a man who called himself "Tom" at the condo who claimed he owned the property and all its contents. The agent refused to allow access to the individual, but "Tom" removed items from the backyard shed without permission. Sonya submits that "Tom" must have been Amit.

[33] On April 22, 2025, the parties once again appeared before me for a case conference. Mr. Felker advised that the contents of the condo had been removed. As such, I ordered that Amit provide an inventory of the contents, as well as Gerlinde's original Will and her cremated remains. Due to Amit's actions in relation to the condo, the ETDL sought an order that Amit was not to attend within 100 metres of the condo.

[34] The ETDL advised the court on April 22, 2025, that the Estate has not filed taxes since 2022 and that approximately $60,000 in arrears, penalties and interest would likely be owed.

[35] On April 25, 2025, the condo was listed for sale. According to the real estate agent, the individual who identified himself as "Tom" continued to frequent the condo and often removed articles from a dumpster bin which had been placed near the property for clean up purposes. "Tom" ignored the ETDL's warnings and the court order to stay away from the condo.

[36] In May 2025, Amit was warned again by the ETDL that he was not to attend within 100 metres of the condo property. The ETDL had received information that Amit had attended at the condo and moved items into his car. An email was sent to Amit by the ETDL on May 4, 2025, advising him of the seriousness of the breach.

[37] At the time of the July 28, 2025 case conference, the estimated net sale proceeds of the condo were $370,000 after payment of the line of credit, legal fees and disbursements on the sale, the ETDL's fees, and income taxes, penalties and interest.

[38] Amit advised that he personally paid property taxes and condo fees for the benefit of the Estate and is seeking reimbursement. Amit was invited to provide proof of such payments. He has never done so.

[39] The ETDL has produced documents to Sonya's lawyer showing that Gerlinde's car was transferred to Amit on August 26, 2022. There is no proof that this transfer was intended as a gift or that Gerlinde had the capacity to make such a transfer.

Sonya's Concerns about Amit and the Disclosure he has Provided

[40] Sonya submits that the limited documents provided by Amit are neither reliable nor credible. She notes that the bank documents contain a TD bank logo inserted in various places in a font which appears unusual.

[41] The documents provided by Amit thus far are unsworn and misleading, some of which were provided to the court on the morning of the hearing or directly to the presiding judge.

[42] Amit rarely provides only one response to requests. Rather, he sends multiple repetitive responses to the same request. This is illustrated in the responding material he provided on this motion.

[43] Gerlinde died over two years ago and only with the ETDL's assistance has the primary asset of the Estate (the condo) finally been sold. Elsbed died over 10 years ago, and her Estate has never been fully administered.

[44] Sonya has incurred significant legal fees to obtain orders which Amit failed to follow. The ETDL has also incurred unnecessary fees in having to email Amit multiple times requesting important documents, involving the Sheriff in gaining possession of the condo, and sending warning emails to Amit about his breach of court orders.

[45] Amit has been granted several indulgences and extended timelines by this Court. When he has produced documents, they are self-generated. Sonya alleges that he created documents and made them appear as if they are bank documents (for example, by inserting the TD logo).

[46] Permitting Amit to continue as a Respondent in this litigation is futile. It will only drive up costs and create further delay. Amit's Notice of Appearance should be struck to allow the efficient and timely administration of this modest Estate.

Amit's Response

[47] Amit has filed 20 documents in Case Centre by way of response to the Motion. He identifies 52 key issues to address. None of the documents are in the form of a properly sworn affidavit on which he could be cross examined.

[48] Sonya objects to the documents filed by Amit as they are not in a proper motion record as required by r. 37.10 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194 (the "Rules").

[49] Sonya further queries whether Amit requires counsel given his representative capacity as Estate Trustee, although she concedes there is no evidence that Amit has ever been formally appointed as Estate Trustee for either Estate.

[50] With respect to the Elsbed Estate, Amit provided a self-generated summary showing that the Estate had a total of $300,000, of which $50,000 was paid to Sonya, $125,000 to Gerlinde and $105,000 to Amit. This does not add up to $300,000. There are no documents to support where the Estate funds came from or to confirm the amounts received by Amit or Gerlinde. Sonya confirmed that she received $50,000 from Amit but refused to sign the release he requested as she did not know what the total value of the Elsbed Estate was and whether she had properly received her distributive share.

[51] Amit also provided a summary of the value of Gerlinde's Estate which he claimed was $600,000 after payment of the real estate commission, executor's fees, probate tax and taxes owed by Gerlinde between 2022 and 2024. There were no documents to corroborate this calculation. Amit also claimed $70,000 in executor's fees for 14 hours a week at $50 per hour in 2023 and 2024. No vouchers or other evidence was provided to verify this amount.

[52] Amit provided a self-generated document dated January 9, 2025, explaining transfers out of his mother's line of credit totaling $87,500. This included $9,100 for Gerlinde's funeral expenses, $25,000 in legal fees for Gerlinde (presumably in relation to the Guardianship Application, although actual proof of payment was never provided), $14,000 in expenses reimbursed to Amit, $28,000 in PSW fees for Gerlinde, a $500 Christmas gift to Amit and $11,000 in unexplained transactions.

[53] Amit submits that every month, his mother permitted him to take $2,000 for caregiving costs and $1,000 for expenses. Amit was therefore paid $3,000 per month for 14 months, or $42,000 from the Line of Credit.

[54] It appears that some of these expenses (for example, for the funeral and PSW care) may well be legitimate and reimbursable to Amit. But he has never provided any proof of those expenses.

[55] Amit also provided copies of correspondence with his previous counsel and offers to settle to Mr. Procope which this Court did not review.

[56] Amit provided unsworn evidence relating to his mother's alleged wish that he retain all the contents of her home and her RIF account. He provided a Bill of Sale dated October 5, 2022, in which Gerlinde purportedly sold her household possessions to Amit for $10,000 and stipulated that he could pay the sale price when he is able. There is no evidence that Amit ever paid this amount to his mother or her Estate, but he felt entitled to remove all the household contents. Sonya questions the authenticity of this document.

[57] Amit also provided a signed statement from Mr. Thomas Kim, dated March 25, 2024, which states that Gerlinde had "legal capacity" in December 2022. There is no information as to how Mr. Kim knew Gerlinde or on what basis he was able to assess her "legal capacity". The statement of Mr. Kim contains inadmissible hearsay.

[58] Gerlinde's sister, Heyke Ebert, also provided an affidavit sworn July 28, 2023, in which she states that because of Sonya's behaviour, Gerlinde removed Sonya as a beneficiary of the RIF account in October 2022. Amit claims that Gerlinde was upset with Sonya about the Guardianship Application as well as Sonya's failure to repay funds which Gerlinde loaned her. Further, the brief 2023 affidavit of Heyke Ebert contains information and belief without stating a source of that information, contrary to r. 39.01(4) of the Rules.

[59] Amit has provided an unsworn statement in which he claims that much of his own personal property was stored at his mother's residence. He claims that this took a significant amount of time to move which is why he was delayed in vacating the condo. Amit has never provided a list of property he claims was his, nor has he provided a list of property belonging to the Estate. Amit further states that he was never required to use his mother's POA for Property between 2021 and 2023 because Gerlinde was able to do her own banking.

[60] In response to the alleged breach of the order permitting Sonya unfettered access to the condo, Amit provided a further unsworn statement in which he says that all his personal and litigation related documents were in the condo, Sonya had no personal property at the condo and Amit had a considerable amount of personal property at the condo that he was organizing. He did not want Sonya coming to the condo for fear she would see Amit's litigation files.

[61] Amit claims that Gerlinde lent Sonya $106,000 to buy a new house. He submits that this should be repaid to the Estate. Further, when Sonya did not repay the loan, Gerlinde was forced to pay the interest on the line of credit she used to advance the funds to Sonya.

[62] Amit concedes that he did not file Gerlinde's taxes for 2022 to 2024. He explained that taxes took a back seat to the other challenges he was facing in relation to his mother's Estate, not the least of which was this Application. He wrote that any penalties or interest accrued as a result should be a shared expense.

Amit's Conduct in this Litigation

[63] Before delving into an analysis of the relevant caselaw, some comment must be made with respect to Amit's conduct in these proceedings.

[64] I note the following from various endorsements made by this Court, which include comments about Amit from the Guardianship proceedings in 2023:

a. In January 2023: "The Respondent [Gerlinde] attended today's appearance by phone with Amit. Amit did almost all of the talking. He purported to "represent" his mother. He insisted on "re-interpreting" the Court's questions to his mother in a way that suited him which was not necessarily the same question asked by the Court. It was clear from even today's brief appearance that Gerlinde was not permitted to give her own view without that view being filtered by Amit."

b. In January 2025: "Mr. Pranzitelli appeared today as counsel for the Respondent [Amit]…he sought a removal order because the Respondent was not following his advice and failed to pay his accounts…

The administration of this Estate has been at a standstill since the date of death in February 2023 or over two years. Amit has been ordered to provide certain material and he has not complied with those orders. While he has provided the disclosure of his choosing, he has not provided his Responding Record which was ordered by Justice Faieta to be filed by August 15, 2024. Further, I am concerned with Mr. Procope's submission that Amit's disclosure is often based on self-generated documents on which his client cannot rely. Finally, Amit has not provided a proper Passing of Accounts in relation to the Winkler Estate and he has not agreed to attend mediation. He was ordered to attend mediation by October 31, 2024….

Amit as Estate Trustee is responsible for filing the deceased's taxes and a terminal return. In all of the disclosure which Amit insists he has provided, there is nothing to confirm that he has filed any taxes. If there is $60,000 in outstanding taxes owed as Amit suggests, then the Home would have to be sold to pay those taxes and possibly the interest and penalties which have accrued because Amit has not fulfilled his obligations as Estate Trustee….

Amit owns at least one other property. Yet, he insists he needs access to the Home at least three days a week in order to access his "office" at the Home where he keeps his personal papers and documents. This is simply absurd. The Home could have been rented out or sold to generate income and liquidity for the Estate. Instead, the Home is earning no income, the HELOC remains in arrears and Amit waits endlessly for his sister to accept his buyout, an Offer in which she has made clear she is not interested….

All of the considerations in Baran apply to this case. Most certainly Amit would be a witness in the event this Application is entirely litigated. Based on the serious allegations advanced by Sonya, Amit has a conflict in a number of areas including allegations of self-dealing and preferring his interest over those of the other beneficiary….

The fact that there is conflict between these beneficiaries is a glaring understatement. There could be no clearer case than this one for hostility between siblings and co-beneficiaries. A quick perusal of Amit's venomous emails to his sister easily illustrates this….

As for a lack of communication between the parties, Amit informed his sister of their mother's death in a one-line email. He refuses to respond to her request for access to the Home. There are many other examples of Amit's lack of communication or abusive communication which are too numerous to document here….

Amit refuses to be realistic about the status of the Home. He is effectively holding it hostage while blaming his sister for the accumulating interest on the HELOC and other household expenses. The Home must be sold….

While Sonya's allegations regarding Amit's behaviour and alleged mental health issues have not been proven, a review of his emails to his sister and to Mr. Procope reveal a less than balanced approach to even the most straightforward of matters."

c. In April 2025: "Mr. Das Gupta is in breach of several previous Court Orders including peremptory Orders I made on January 7, 2025. Further, Mr. Das Gupta has not cooperated with the ETDL and has held up the administration of this Estate as will be detailed below. Specifically, Mr. Das Gupta has failed to do the following:

(a) Comply with the Order of Justice Sanfilippo dated April 26, 2024 to file responding material. He has never filed any responding material.

(b) Comply with the Order to Justice Sanfilippo dated April 26, 2024 to provide copies of all beneficiary designations in his possession.

(c) Comply with the Order of Justice Faieta dated July 2, 2024 regarding an accounting of transactions related to his mother's accounts from January 1, 2021.

(d) Comply with my peremptory Order dated January 7, 2025 by requiring him to file a responding record by March 7, 2024.

(e) Comply with the requirement that he provide access to his mother's condo to Sonya.

(f) Comply with the Order of Justice Faieta dated July 2, 2024 that he attend mediation by October 31, 2024.

(g) Comply with the requirement that he file a Notice of Intention to Act in Person and provide vacant possession of the condo to the ETDL.

(h) Comply with my January 7, 2025 Order that he provide a list of estate assets and all estate documents within 15 days.

(i) Comply with my January 7 2025 Order that he provide a release to the Applicant and the ETDL for all financial information and records of the Estate including life insurance and other beneficiary designations…..

Mr. Das Gupta has failed to cooperate with requests from the ETDL as follows:

(a) Failed to provide a list of Estate assets and Estate documents in his possession by January 24, 2025;

(b) Refused to vacate the condo as requested such that it could be prepared for sale. The Sheriff was required to attend at the condo on April 8, 2025. Once inside, it was discovered that the contents of the condo had been removed including all Estate documents and property. The Sheriff reported that the screen door had been screwed shut to prevent access to the condo. The door had to be forced which caused damage to the frame.

(c) Failed to cooperate regarding past tax filings. The ETDL estimates that $60,000 in taxes is owed for 2022-2024. The ETDL has been unable to access the deceased's CRA account.

(d) Failed to provide information concerning the deceased's German pension, TD safety deposit box or 2019 Hyundai Elantra.

Mr. Das Gupta is in clear breach of multiple Court Orders including ones that are peremptory on him. The material provided by Mr. Das Gupta raises no new issues and repeats the same untenable positions he has taken in the past."

[65] The excerpts set out above demonstrate the Court's clear frustration with Amit for his failures to fulfil his fiduciary duties as Estate Trustee and provide documents, as well as the resulting cost and delay to the Estate administration.

[66] His defences to the issues raised by Sonya border on ludicrous, including his contention that he could not leave the condo because he was required to work there three days a week on this litigation. And further, that he could not permit his sister access to the condo because his litigation documents were there. Amit owns another property. There is no reason that he required the use of the condo for three days a week.

[67] As well, his position on the overall administration of the Estate is untenable. Sonya has conceded that she owes the Estate approximately $103,000 as a result of funds loaned to her by her mother during her lifetime. Amit insisted that his sister pay the funds she owed the Estate up front in order to pay down the line of credit. He then insisted that she accept his buyout of her share of the condo and that he receive the balance of the RIF account. For obvious reasons, any potential settlement was invariably stalled. Sonya does not trust Amit and she had no assurance that if she made any payment on the line of credit, she would be credited for it. Further, she did not accept Amit's value for the condo for settlement purposes.

[68] Amit's refusal to vacate the condo, pay Estate taxes and provide proper documentation have cost this already modest Estate a significant amount in unnecessary fees and penalties.

Analysis

[69] Rule 60 of the Rules permits the Court to strike out a party's defence if they have failed to comply with an interlocutory order. Rule 75 permits the court to strike out any document filed by a party who has failed to appear for mandatory mediation.

[70] In Last v. Last, 2025 ONSC 1407, the Court dealt with a dispute between two brothers who were the sole heirs of their mother's Estate. The Applicant Glen Last ("Glen") brought a motion to strike out the Notice of Appearance filed by his brother the Respondent Craig Last ("Craig"). Glen alleged that Craig failed to comply with numerous court orders which required Craig to pass his accounts as his mother's former Attorney for Property, and to provide an accounting of his management of Estate assets over a certain period of time. Glen alleged that Craig had improperly taken over $1.4M from his mother's accounts prior to and after her death.

[71] The Court found that Craig had failed to pass accounts or provide the accounting required by previous court orders. Craig's position was that he had not mismanaged his mother's affairs, but he failed to provide documents or invoices to support his assertions. The Court found that while some amounts could be accounted for, over $1M remained unaccounted. Craig's share of the Estate was therefore reduced by $523,000 to account for the misappropriated funds: Last, at paras. 70-72.

[72] In the end, the Court found it unnecessary to strike Craig's Notice of Appearance as the court was able to determine exactly what Craig owed to the Estate, thereby ending the litigation: Last, at para. 49. In the case at bar, litigation has not yet concluded. Further investigation must be made as to a number of issues relating to an accounting of the value of this Estate including, but not limited to, whether the transfer of the vehicle from Gerlinde to Amit was a pre-death gift or whether it was the subject of suspicious circumstances, Amit's claims for reimbursement from the Estate for various expenses (not yet proven or crystallized), the proportionate responsibility of the parties for the line of credit, whether Amit should be responsible for any reduction in value of the condo due to the delay in its sale, whether Amit should bear responsibility for interest and penalties accumulated on Gerlinde's tax arrears due to failure to deal with those obligations, whether Amit is entitled to the balance of the RIF funds or whether there were suspicious circumstances relating to the change of beneficiary, and any costs owed to the Estate by Amit due to his conduct in this litigation.

[73] However, in Last, the Court did not hesitate to find that Craig's failure to provide an accounting and to pass accounts was a breach of his fiduciary duty. Craig's defence that he had mental health issues and needed a Litigation Guardian was not relied upon by the Court as Craig provided no proof of any such issues.

[74] In Way v. Schembri, 2025 ONSC 946, the Plaintiffs brought a motion to strike the Respondents' Statement of Defence based on its "prolonged, repeated and intentional failure to comply with the disclosure of key documents in the face of an undertaking, two court orders, including a peremptory order, and a direction from the court to comply with the first order within a reasonable time frame": at para 2.

[75] The Court proceeded to analyze the Respondents' failure to comply with a 2023 production order, and a 2024 peremptory production order. The Court recognized that in exercising its discretion to strike a defence, such orders were important in protecting the legal system from delay and maintaining the integrity of the justice system by reinforcing the importance of compliance with court orders: Way, at para. 42.

[76] The Court struck the Respondents' defence and their claim in a companion action, giving the following reasons at para. 67:

Schembri has consistently "ragged the puck" with regard to his disclosure obligations, and made calculated decisions to either not comply, or not devote sufficient resources to comply with the court's orders in a responsible and timely fashion. The court has a responsibility to prevent waste and uphold the integrity of the justice system by enforcing compliance with its orders. The evidence on this motion demonstrates only a grudging, tardy and insufficient investment of resources to comply with the order. Appellant jurisprudence makes clear that the court can and should take appropriate steps, up to and including dismissal of claims and striking of pleadings to ensure that parties follow its orders.

[77] In Ponnampalam v. Thiravianathan, 2023 ONSC 1361, Associate Judge Robinson considered a motion to strike the Defendant's defence in the face of what were stated to be ongoing breaches of court orders. The Defendant denied the allegations.

[78] The Court found that the Defendant had not sufficiently addressed his ongoing non-compliance with procedural obligations and court orders: Ponnampalam, at para. 7. The Court rejected the Defendant's assertion that he did not understand his obligations as there was no evidence of this: Ponnampalam, at para. 4. The Court granted the order finding that the Defendant had failed to remedy his breaches and there was no evidence that that affording him a further opportunity to do so would make a difference: Ponnampalam, at para. 5.

[79] Specifically, in Ponnampalam, the Court found that the Defendant failed to comply with court ordered timetables, failed to serve an affidavit of documents, failed to attend an examination for discovery, failed to pay costs and failed to comply with interlocutory orders. The Court held that giving the Defendant another chance to comply was meaningless and thus, his defence was struck: at para. 43.

[80] In Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310, the Court of Appeal dealt with an appeal by the Lotey Defendants of the motions judge's order to strike their defence. The evidence before the motions judge was that the Plaintiff spent three years trying to obtain production from the Lotey Defendants. The motions judge found that the Lotey Defendants had willfully disregarded court procedure and production orders for three years, avoided adjudication on the merits and did everything they could to prejudice the Plaintiff's claim: Falcon Lumber, at para. 38.

[81] In dismissing the appeal, the Court of Appeal provided the following summary of the principals with respect to striking a pleading, at para. 57:

To summarize, several principles guide the exercise of a court's discretion to strike out a party's claim or defence under r. 30.08(2) for non-compliance with documentary disclosure and production obligations:

• The remedy is not restricted to "last resort" situations, in the sense that it must be preceded by a party breaching a series of earlier orders that compelled better disclosure or production. However, courts usually want to ensure that a party has a reasonable opportunity to cure its non-compliance before striking out its pleading;

• A court should consider a number of common sense factors including: (i) whether the party's failure is deliberate or inadvertent; (ii) whether the failure is clear and unequivocal; (iii) whether the defaulting party can provide a reasonable explanation for its default, coupled with a credible commitment to cure the default quickly; (iv) whether the substance of the default is material or minimal; (v) the extent to which the party remains in default at the time of the request to strike out its pleading; and (vi) the impact of the default on the ability of the court to do justice in the particular case;

• The merits of a party's claim or defence may play only a limited role where breaches of disclosure and production obligations are alleged as one would reasonably expect a party with a strong claim or defence to comply promptly with its disclosure and production obligations;

• In considering whether an order to strike out a pleading would constitute a proportional remedy in the circumstances, a court should consider:

o the extent to which the defaulting party's conduct has increased the non-defaulting party's costs of litigating the action, including the proportionality of those increased costs to the amount actually in dispute in the proceeding; and

o to what extent the defaulting party's failure to comply with its obligation to make automatic disclosure and production of documents has delayed the final adjudication of the case on its merits, taking into account the simplicity (or complexity) of the claim and the amount of money in dispute.

[82] In applying these principles and those enunciated in the foregoing cases, I find there is ample evidence of a clear breach of procedure and court orders by Amit as well as conduct that would make any further orders to comply futile:

a. This is not a "last resort" remedy. Justices Sanfilippo, Faeita and I have given Amit numerous opportunities to comply with previous orders. Even when made peremptory, Amit ignored the orders.

b. With respect to the "common sense" factors enumerated in para. 51 of Falcon Lumber, I note:

i. There is no doubt that Amit has failed to comply with orders. He never filed a Responding Record, he did not respond to a request to schedule mediation, he has never filed a Notice of Intention to Act in Person, he refused access to the condo by his sister despite clear court direction and he failed to vacate the condo when specifically ordered to do so.

ii. Amit's response in the face of these breaches is either not to respond at all (as outlined above in these reasons) or provide an illogical response such as preventing access to the condo by his sister because his litigation documents were located there.

iii. The substance of Amit's defaults is not immaterial. His failure to provide a proper responding record means there has never been an opportunity to properly cross examine him. The disclosure he provides is disorganized, cryptic and unsupported with documentation. All his disclosure is self-generated, and Sonya is simply requested to accept it as valid and accurate. Amit's failure to cooperate with ETDL has increased expense and inefficiency for this estate.

iv. There is no doubt that Amit's conduct in this litigation and his breaches of court orders have increased expenses and created over two years of litigation for an Estate with a modest condo as its main asset. Amit's failure to vacate the condo caused the Sheriff to become involved. Amit's conduct required the appointment of an ETDL which has also increased costs. His disdain for his sister and the clear conflict of interest in continuing to act as Estate Trustee while paying himself from Estate assets and occupying Estate property has necessitated a complex disentangling of expenses that may or may not have been incurred legitimately. The costs resulting from Amit's conduct and breaches are clearly disproportionate to the value of the Estate.

[83] Given all the above, I find that, like in Ponnampalam, giving Amit another chance to comply with previous orders would be meaningless. Amit feigns cooperation while providing documents that are unsworn, meaningless and irrelevant. No progress can be made in the administration of this Estate while Amit remains a party to the litigation.

[84] For the sake of efficiency and to ensure a fair and efficient court process for the administration of this Estate, Amit's Notice of Appearance shall be struck.

[85] Given all the above, I make the following orders:

a. Amit's Notice of Appearance is hereby struck;

b. The consolidated Applications shall proceed as unopposed;

c. Amit shall not take any further steps with respect to the administration of the Estate and is not entitled to notice of any further steps in the Elsbed or Gerlinde Estate proceedings.

d. The Case Conference scheduled before me for January 23, 2026 at 11:00 a.m. for 15 minutes shall remain in place. The ETDL, Mr. Procope and I will use this time to determine next steps. Amit is not permitted to attend.

Costs

[86] Sonya seeks her costs of this motion in the amount of $19,969. This was a procedural motion heard in writing for efficiency and to keep costs in check. Amit requested three extensions for filing his responding motion material. Much of his material had been used in previous appearances, was unsworn and/or was only tangentially relevant.

[87] Mr. Procope is an experienced estates litigator with 15 years' experience. He appropriately used the services of clerks and less senior lawyers as needed. Given the history of this matter and the amount of material filed on the motion, I find that the costs requested are reasonable.

[88] Amit was asked about his position on costs at a November 3, 2025 case conference held in this matter. He submitted that he had incurred over $30,000 in legal costs. He did not provide any invoices from previous counsel in support of this contention.

[89] I therefore order costs in an all-inclusive amount of $19,000, payable from Amit's share of the Estate. This motion should not have been necessary, and Amit should be entirely responsible for the cost of having to bring it.

C. Gilmore, J.

Date: November 5, 2025