On Tuesday, I blogged on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.
There, the application judge denied the guardian compensation. In so doing, the application judge noted the guardian’s failure to keep proper accounts. The Court of Appeal stated that a guardian has, by statute, a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. “The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate.”
Further, the application judge went on to find that “the conduct [of the guardian] has been shocking. He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s and was unable to look after her own affairs.”
Together, these two factors led to a denial of compensation: a conclusion that was said to be clearly in the discretion of the application judge.
In denying compensation, both the Court of Appeal and the court below relied on the decision of Zimmerman v. McMichael Estate, 2010 ONSC 2947. This decision clearly sets out the obligations of a trustee, including the obligation to account. The application judge found that because significant funds disappeared from the estate without adequate explanation, it was appropriate to award no compensation. The application judge contrasted this with the situation in Re Assaf Estate, 2009 CanLII 11210. There, there was wrongdoing found, but no harm was said to have resulted to the estate. In that situation, compensation was reduced by 50%, but not disallowed completely.
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Paul Trudelle – Click here for more information on Paul Trudelle.
Yesterday, Ian Hull tweeted on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.
There, the Court of Appeal dismissed, for the most part, an appeal by a guardian from a decision dismissing his application to pass accounts. The motions judge ordered that the guardian repay a significant amount to the estate; dismissed his claim for reimbursement for certain legal fees, and deprived the guardian of compensation.
The guardian appealed the finding that he had to repay funds to the estate on the basis that the application judge did not provide adequate reasons. The Court of Appeal noted that the appellate court’s focus is on whether the reasons explain what was decided and why the decision was made. “Ultimately, the test is whether the reasons permit reasonable appellate review.” The Court of Appeal found that, “Shortcomings notwithstanding”, the application judge’s reasons were adequate. The findings of the applications judge were supported by the record; the applications judge’s assessment of credibility was entitled to deference; and the application of the facts to the controlling legal principles leading to the conclusions reached was explained.
Tomorrow, I will look at the discussion of the application judge’s denial of compensation.
Thanks for reading,