Court Of Appeal Summaries (January 12-16, 2015)

Hello again to everyone. It was a light week for the Court of Appeal. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). There was one estates decision, two brief family law decisions and a costs endorsement in a bankruptcy matter.

Wishing everyone a nice weekend.

Heston-Cook v. Schneider, 2015 ONCA 10

[Weiler, Sharpe and Blair JJ.A.]

Counsel:

Gregory Sidlofsky, for the appellant Lisbeth Hollaman, for the respondent

Keywords: Estates, Removal of Estate Trustee, Breach of Fiduciary Duty, Attorney for Personal Care and Property, Standing to Sue, Costs, Blended Awards, Sawdon Estate v. Watch Tower Bible and Tract Society of Canada

Facts: The appellant appealed the decision of Wilton-Siegel J., who dismissed her cross-motion to be appointed estate trustee of her mother's estate, and to remove her respondent sister as estate trustee. The appellant initially brought an action against the respondent, alleging that the respondent breached her fiduciary duty to her mother during the time the respondent was her attorney for personal care and property. During the first motion brought by the respondent for summary judgment to dismiss the appellant's claim, the motion judge granted the appellant leave to bring a cross-motion to be appointed estate trustee. Since the appellant had no standing to sue the respondent, and therefore only the estate had standing, the appellant was granted leave accordingly. At the hearing of the cross-motion, Wilton-Siegel J dismissed the appellant's motion, and the respondent remained estate trustee of their mother's estate.

Issues:

(1) Did Wilton-Siegel J. err in dismissing appellant's cross-motion?

(2) Did Wilton-Siegel J. err in ordering the appellant to pay the respondent, as estate trustee, full indemnity costs for the hearing of the cross-motion?

Holding:

The appeal was dismissed on the matter of the appointment of the appellant as estate trustee. The appeal was allowed on the issue of the scale of costs awarded to the respondent. Costs fixed in the amount of $10,000 for the appeal were awarded to the respondent, as estate trustee.

Reasoning:

(1) No. Wilton-Siegel J. did not err in principle in dismissing the appellant's cross-motion to be appointed as estate trustee. Since it is only the estate which has standing to bring a claim for breach of fiduciary duty against the respondent, the estate trustee who has carriage of the claim needs to be able to make an objective assessment of the overall interests of the estate and whether it is in the best interests of the...