There were three separate but related proceedings in James v. Estate of Clarence Roy James et al., 2021 ONSC 7356. Given the number of proceedings involved, this decision is an interesting read for creative, procedural solutions to multi-faceted disputes.
Roy James died on June 10, 2018. Roy was survived by his two children, Lory and John. Lory and John are the Estate Trustees and beneficiaries of the James Estate.
The first proceeding was an application commenced by Lory for the removal of her co-Estate Trustee, John. The second proceeding was an application commenced by John against Lory, Glacier Trading Corporation, and Management Services Ltd. in which John is of the view that Glacier Trading Corporation is an asset of the James Estate whereas Lory is of the view that she is the sole owner this corporation. The third proceeding is an action that was commenced by Lory. According to Justice Vella, “The Action raises new issues, causes of action, and facts not reflected in either of the Applications. The new issues concern serious allegations against John of alleged intentional misconduct with respect to the James Estate. The Action also raises claims against other parties who are not respondents in either of the Applications, such as the James Estate’s former law firm.”
The two applications were commenced in Hamilton and the action was commenced in Toronto. Lory, on a motion under Rule 6.01, seeks to consolidate both Hamilton applications into the Toronto action.
Having considered the factors that were set out in Fountain Asset Corp. v. First Global Data, 2017 ONSC 4780, and Yorkville East Developments Inc. v. York Condominium Corporation No. 194, 2021 ONSC 5678, Justice Vella granted the consolidation because all three proceedings arise from the same transaction or series of transactions related to the administration of the James Estate. Given the issues of credibility in the Hamilton applications, Justice Vella was also of the view that the Hamilton applications should be converted to actions, and tried with the Toronto action because “It would be beneficial to have the same trier of fact assess the credibility of John and Lory and their respective witnesses on all of the issues related to the James Estate.” Correspondingly, there was also a real risk of inconsistent findings if the Hamilton applications were decided separately from the Toronto Action.
Thus, Lory was granted leave to amend her statement of claim to the extent necessary to incorporate the claims in Lory’s Hamilton application. On the other hand, the claims in John’s Hamilton application shall now be asserted as a counterclaim in the Toronto action, and any applicable limitation periods were tolled as of the date on which John’s Hamilton application was issued. This was explicitly ordered so that there will be no confusion for the purposes of Lory’s limitations defence. Thereafter, Justice Vella prioritized the scheduling of a motion to determine who should be the Estate Trustee of the James Estate (be it an estate trustee during litigation or Lory as the sole continuing Estate Trustee).
Thanks for reading!