



COURT OF APPEAL FOR ONTARIO

CITATION: Wall v. Shaw, 2018 ONCA 929

DATE: 20181121

DOCKET: C65164

Doherty, Brown and Trotter JJ.A.

(sitting as Divisional Court)

BETWEEN

Elizabeth Wall

Applicant (Respondent)

and

Ian Paul Shaw, in his capacity as Estate Trustee
    of the Estate of Marjorie Ann Wall, and in his personal capacity

Respondent (Appellant)

Raymond G. Colautti and Susan Easterbrook, for the Appellant

Christopher Graham and Andrew Bala, for the Respondent

Heard: October 26, 2018

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated March 14, 2018, with reasons reported
    at 2018 ONSC 1735, 38 E.T.R. (4th) 38.

Brown J.A.:

I.

OVERVIEW

[1]

This appeal raises a narrow issue. It involves an application by an
    estate trustee to pass accounts, some of which pre-date the issuance of the
    application by more than two years. In response to this application, a
    beneficiary filed a notice of objection to accounts that included objections to
    the accounts pre-dating the issuance of the application by more than two years.
    After having applied to pass those accounts, can the estate trustee move to
    strike out the objections pertaining to them on the basis that they are barred
    by the basic two-year limitation period in s. 4 of the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B (the 
Limitations Act
)?

[2]

I conclude that the estate trustee cannot. By filing a notice of
    objection to accounts in response to an estate trustees application to pass
    accounts, a beneficiary is not commencing a proceeding in respect of a claim
    within the meaning of s. 4 of the
Limitations Act
. I would dismiss the
    appeal.

II.

JURISDICTION

[3]

This appeal involves an order made in a passing of accounts proceeding
    under s. 49 of the
Estates Act
, R.S.O. 1990, c. E. 21. Section 10(1)
    of that Act provides that the appeal from the order of the motion judge lies to
    the Divisional Court, not to the Court of Appeal. However, this panel of the
    Court of Appeal has been authorized by the Chief Justice of the Superior Court
    of Justice to reconstitute itself as a panel of the Divisional Court to hear
    the appeal:
Courts of Justice Act
, R.S.O. 1990, c. C.43, ss. 13(2) and
    18(2). The parties had no objection to the panel so doing. Consequently, the
    panel heard the appeal as a panel of the Divisional Court.

III.

FACTS

A.

The will
    and the administration of the estate

[4]

The appellant, Ian Paul Shaw, a lawyer, acted as estate trustee of the
    estate of the late Marjorie Ann Wall from the date of her death, August 11,
    2005, until his resignation pursuant to the order of DiTomaso J. dated August
    4, 2016.

[5]

In her will, the deceased provided for two bequests. She directed her
    estate trustee to divide the residue into two equal shares to be held in trust
    for her daughter, the respondent, Elizabeth Ann Wall, and her son, Bruce Edgar
    (Ted) Wall. The motion judge described the trusts at para. 5 of his reasons:

[The deceased] left the bulk of her estate to her two children
    in trust, until they attained the age of 60 years.  The will further
    provided that the trustee had absolute discretion to pay funds to these two
    beneficiaries during their lifetime prior to reaching age 60.  At the time
    of Marjories death, both children were under the age of 60.  It is not
    disputed that the estate trustee paid certain sums to these two beneficiaries
    over the years.  The will further provided that if both these
    beneficiaries did not reach the age of 60 years, then the residue of the estate
    was to be divided among Marjories nieces and nephews (the contingent
    beneficiaries).  Bruce Edgar Wall passed away before reaching the age of
    60.  Elizabeth Wall is 54 and remains the sole vested beneficiary. 
    If she reaches the age of 60, the discretionary trust will be collapsed and she
    will become the beneficiary of the entire estate.  If she passes away
    before the age of 60, the trust will be collapsed and the nieces and nephews
    will become the sole beneficiaries of the estate.

[6]

At the time of her death, the deceaseds estate had a value of
    approximately $3 million, which included some real estate assets.

[7]

Ted died in January 2014, before turning 60. Under the terms of the
    Will, the monies in trust for him were to be added to those in the trust for
    Ms. Wall.

[8]

In the years following his appointment as estate trustee, Mr. Shaw did
    not apply to pass his accounts. However, he met annually with Ms. Wall and in
    some years with both children. The parties disagree about what took place at
    those meetings. Mr. Shaw deposes that at each annual meeting the beneficiaries
    approved his administration of the estate, including the amount of compensation
    he was taking. Ms. Wall contends the meetings focused on the distributions of
    trust income made to the beneficiaries in the preceding year, not the larger
    administration of the estate or Mr. Shaws compensation.

B.

The
    history of the passing of accounts litigation

[9]

Disputes eventually arose between Mr. Shaw and Ms. Wall about the
    compensation Mr. Shaw was taking as estate trustee.

[10]

In
    October 2014, Ms. Wall issued a notice of application seeking an order
    directing Mr. Shaw to bring an application to pass his accounts for the entire
    period of time since her mothers death in 2005.

[11]

Mr.
    Shaw consented to Pattillo J.s January 15, 2015 order directing him to bring
    an application to pass his accounts for the period from the date of death until
    December 31, 2013. He issued a notice of application to pass accounts on March
    31, 2015, for the period from August 11, 2005, until December 31, 2013.

[12]

Several
    beneficiaries filed notices of objection to the accounts pursuant to r.
    74.18(7) of the
Rules of Civil Procedure
. Ms. Wall filed a June 2,
    2015 notice detailing numerous objections to the accounts. In January 2016, two
    nieces of the deceased, who would benefit under the will in the event Ms. Wall
    died prior to reaching the age of 60, also filed notices of objection to the
    accounts.

[13]

In
    January 2016, Mr. Shaw moved to strike out Ms. Walls notice of objection. This
    elicited a motion from Ms. Wall to remove him as estate trustee.

[14]

By
    order dated February 16, 2016, Eberhard J. adjourned both motions
sine die
and sanctioned a procedure agreed to by the parties to prepare for a contested
    passing of accounts hearing, anticipated to be held towards the end of 2016.

[15]

An
    August 4, 2016, consent order by DiTomaso J. then: (i) replaced Mr. Shaw with
    an institutional estate trustee; (ii) further adjourned Mr. Shaws motion to
    strike
sine die
; (iii) gave directions regarding further steps in the
    passing of accounts application; (iv) directed the parties to attend a
    mediation; and (v) ordered that in the event the parties did not reach a
    mediated settlement, the passing of accounts hearing should be scheduled for
    the earliest date after April 30, 2017.

[16]

No
    settlement was reached. Nor was a hearing held as directed because the estate
    trustee sought a hearing of his motion to strike Ms. Walls notice of objection.

C.

The motion
    to strike

[17]

Mr.
    Shaw sought to strike out Ms. Walls notice of objection in respect of his
    accounts for the period 2005 to 2012 on three grounds: (i) Ms. Walls approval of
    the accounts at the annual meetings amounted to acquiescence; (ii) her claim
    was barred by laches; and (iii) her objections were time-barred by ss. 4 and 5 of
    the
Limitations Act
. He did not seek to strike the nieces two notices
    of objection. The motion judge held, at para. 33, that he was not satisfied the
    doctrine of laches applied or that the annual meetings and initialing of the
    statements by Ms. Wall amounted to acquiescence. Mr. Shaw does not appeal those
    findings.
[1]


[18]

Before
    the motion judge, Mr. Shaw framed his argument based on the
Limitations Act
in the following manner:

Mr. Shaw does not dispute that he is required to pass accounts
    for the period from the date of death in 2005 until the date of his removal in
    2016.  What he does object to is a requirement to address the Objection to
    Accounts which were not filed until June 2, 2015.  He submits that by reason of
    the
Limitations Act, 2002
he is not required to address any
    objection to accounts for the period from the date of death until December 31,
    2012.

[19]

The
    motion judge did not accept that submission. He held, at para. 31:

Based on the facts in [
Armitage v. The Salvation Army
,
    2016 ONCA 971, 406 D.L.R. (4th) 563], Hourigan J.A. found that the passing of
    accounts does not fit within the definition of a claim within the
Limitations
    Act,
2002.  In my view, if the passing of accounts does not constitute a
    claim, I am not satisfied that a Notice of Objection is a claim.

[20]

Mr.
    Shaw appeals.

IV.

ISSUE

[21]

Mr.
    Shaw advances a single ground of appeal: the motion judge erred by refusing to
    apply the two-year basic limitation period in s. 4 of the
Limitations Act
to bar Ms. Walls notice of objection in respect of the accounts for the period
    August 11, 2005 to December 31, 2012. Mr. Shaw submits that Ms. Wall seeks to assert
    claims against him because she is seeking a remedy in the passing of
    accounts proceeding  i.e. a reduction in his compensation from the estate.

[22]

As
    I will explain, I do not accept Mr. Shaws submission. I will begin by considering
    the legislative provisions governing an estate trustees application to pass
    accounts. I will then consider the application of the
Limitations Act
to
    those provisions, first as a matter of statutory interpretation and then as a
    matter of policy.

V.

THE LEGISLATIVE FRAMEWORK FOR APPLICATIONS TO PASS ACCOUNTS

[23]

As
    noted in Ian M. Hull & Suzana Popovic-Montag,
Macdonell, Sheard and
    Hull on Probate Practice,
5th ed. (Toronto: Thomson Reuters, 2016)
    (hereafter 
Probate Practice
), at p. 505:

It is the duty of all estate trustees, executors,
    administrators and guardians of property (as well as all trustees) to keep
    proper books of account and to be ready at all times to account for the trust
    property that they are bound to administer. However, in Ontario, there is no
    statutory requirement to pass accounts, and estate trustees, etc., may choose
    not to pass their accounts unless compelled to do so by the court at the
    instance of or on behalf of a person with an interest.

See also: Brian A. Schnurr,
Estate Litigation
,
    loose-leaf (2018-Rel. 6),

2nd ed. (Toronto: Thomson Reuters, 1994), at
    ch. 5.2;
Estates Act
, s. 50(1).
[2]

[24]

Section
    49(2) of the
Estates Act
empowers a judge on a passing of accounts by
    an estate trustee, to enter into and make full inquiry and accounting of and
    concerning the whole property that the deceased was possessed of or entitled
    to, and its administration and disbursement. Sections 49(3) and (4) further
    describe the procedure and judges powers on an estate trustees passing of
    accounts:

(3) The judge, on passing any accounts under this
    section, has
power to inquire into any complaint
    or claim by any person interested in the taking of the accounts of misconduct,
    neglect, or default on the part of the executor, administrator or trustee
    occasioning financial loss to the estate or trust fund,
and the judge, on proof of such claim,
may order the
    executor, administrator or trustee, to pay such sum by way of damages or
    otherwise
as the judge considers proper and just to the
    estate or trust fund, but any order made under this subsection is subject to
    appeal.

(4)
The judge may
    order the trial of an issue of any complaint or claim under subsection (3)
, and in such case the judge shall make all necessary directions as to
    pleadings, production of documents, discovery and otherwise in connection with
    the issue. [emphasis added]

[25]

The
Rules of Civil Procedure
contain detailed
    rules governing the minimum informational requirements for accounts filed with
    the court by an estate trustee (r. 74.17) and the procedure that a passing of
    accounts application must follow (r. 74.18). Several features of r. 74.18 are relevant
    to the issue on this appeal:

·

The estate trustee brings the application to pass
    accounts (r. 74.18(1)) using a prescribed notice of application, which advises that
    any person with a financial interest in the estate may object to the accounts
    by serving a notice of objection and states that at the hearing of the
    application the only issues upon which the court adjudicates are those raised
    in the notices of objection to accounts: r. 74.18(2);

·

A person with a contingent or vested interest in the
    estate may file a notice of objection to accounts (r. 74.18(7)), using a
    prescribed form, which must specify the grounds for any objection to the
    accounts or the amount of compensation claimed by the estate trustee;

·

Where a notice of objection is filed and not
    withdrawn, the application proceeds as a contested passing of accounts
    requiring a hearing under rr. 74.18(11.5) through (13.2) and the application
    judge may order that the entire application or any issue proceed to trial: r.
    74.18(13.1);

·

Where no notice of objection is filed, the estate
    trustee may seek judgment on the passing of accounts without a hearing: r.
    74.18(8.5) and (9);

and

·

The forms of judgment prescribed by r. 74.18(14)
    (Forms 74.50 and 74.51): (i) declare the estate accounts passed; (ii) declare
    the capital and revenue receipts and disbursements of the applicant estate
    trustee; (iii) order the fair and reasonable compensation to be paid to the
    estate trustee out of the estates assets; and (iv) deal with the costs of the
    application.

VI.

ANALYSIS

[26]

The
    applicability of the
Limitations Act
to a notice of objection served in
    response to a passing of accounts application under the Ontario
Estates Act
and the
Rules of Civil Procedure
is a novel question. The appellant
    contends that this question is answered by the Alberta Court of Appeals
    decision in
Saraceni v. Saraceni
, 2013 ABCA 354, 561 A.R. 187, which
    established that limitations statutes apply to statutes governing estate
    administration in the absence of an express statutory exclusion.

[27]

Saraceni
is distinguishable from this case, in regard to the statutes it
    interpreted and the circumstances in which it applied them. First, s. 38 of the
    Alberta
Administration of Estates Act,
R.S.A. 2000, c. A-2, specifically
    contemplated the application of the Alberta
Limitations Act
, RSA 2000,
    c. L-12, to estate proceedings. Second, the language in s. 3(1) of the Alberta
Limitations
    Act
differs markedly from that in s. 4 of the
Limitations Act
. It
    grants a defendant immunity from liability if the claimant does not seek a
    remedial order within two years. By contrast, the Ontario statute bars the
    commencement of a proceeding in respect of a claim after the expiry of the
    basic limitation period. Finally,
Saraceni
concerned a notice of
    objection to a grant of probate, not a passing of accounts, which was brought
    eight years after the estate had been administered.

[28]

The
    issue raised by the appellant therefore must be resolved by applying the wording
    of s. 4 of the Ontario
Limitations Act
to the regime for the passing
    of an estate trustees accounts established by ss. 49 and 50 of the
Estates
    Act
and rr. 74.17 and 74.18 of the
Rules of Civil Procedure.
Section
    4 of the
Limitations Act
only applies to a (i) proceeding commenced (ii)
    in respect of a claim.

A.

Does a
    Notice of Objection to Accounts commence a proceeding within the meaning of s.
    4 of the
Limitations Act
?

[29]

Section
    4 of the
Limitations Act
states: 
Unless this Act
    provides otherwise,
a proceeding shall not be
    commenced
in respect of a claim after the second
    anniversary of the day on which the claim was discovered (emphasis added). A
    notice of objection to accounts does not commence a proceeding.

[30]

Section 49 of the
Estates Act
and
rr.
    74.17 and 74.18 of the
Rules of Civil Procedure
create a passing of
    accounts procedure in which the estate trustee, not a beneficiary, is the
    applicant who commences the proceeding. Section 4 of the
Limitations Act
does not limit the ability of a person to respond to or participate in a
    proceeding commenced by another. That is what happens when a beneficiary files
    a notice of objection to accounts. She responds to a proceeding already
    initiated by the estate trustee.

[31]

Mr.
    Shaw submits that although a beneficiary may respond to an existing proceeding by
    her notice of objection, that response is essentially a counterclaim and
    therefore commences a proceeding. Furrow and Zacks advance a variant of this
    argument in their article, The Limitation of Applications to Pass Accounts. In
    their view, [i]ssuing a notice of application commenced the proceeding on some
    earlier date; filing the notice of objection commenced the proceeding
in
    respect of a claim
: at p. 248.

[32]

I
    am not persuaded by this argument, which founders on the language of s. 1.03 of
    the
Rules of Civil Procedure
. As the
Limitations Act
does not
    define the term proceeding, this court usually takes guidance from the
    definitions found in the
Rules of Civil Procedure
:
Giglio v.
    Peters
, 2009 ONCA 681, 99 O.R. (3d) 129, at para. 21. It is significant
    that the definitions of proceeding, and its constituent terms action and
    application in r. 1.03 of the
Rules of Civil Procedure,
do not
    include a r. 74.18(7) notice of objection. By contrast, a counterclaim falls
    within the definition of an action in r. 1.03 and, thus, within the
    definition of proceeding. Nor does a notice of objection fall within the
    definition of originating process, the document whose issuance commences a
    proceeding.

B.

Is a Notice
    of Objection to Accounts a claim within the meaning of s. 4 of the
Limitations
    Act
?

[33]

As
    a notice of objection does not commence a proceeding within the meaning of s. 4
    of the
Limitations Act,
strictly speaking it is not necessary to
    determine whether a notice of objection is a claim to which s. 4 would
    otherwise apply. However, because Mr. Shaw takes issue with the motion judges
    application of this courts decision in
Armitage
to resolve that
    question, I will address it briefly.

[34]

Section
    4 of the
Limitations Act
bars the commencement of a proceeding
in
    respect of a claim
after the second anniversary of the day on which the
    claim was discovered. Section 1 of that Act defines claim to mean a claim to
    remedy an injury, loss or damage that occurred as a result of an act or
    omission.

Application of
Armitage

[35]

In
Armitage,
this court held that an application by an attorney for
    property to pass accounts under the
Substitute Decisions Act
, 1
992
,
    S.O. 1992, c. 30 (the 
SDA
) was not a claim within the meaning of
    the
Limitations Act
. Writing for the court, Hourigan J.A. stated, at
    paras. 27 and 29:

The fact is that in seeking court approval of the passing of
    accounts, an attorney for property is not seeking redress for any loss, injury,
    or damage. Rather, he or she is seeking approval from the court of his or her
    actions in managing the property, including approval for compensation
    previously taken or now sought. A passing of accounts application is the
    opposite of remedial; it is a process that seeks a court order that no remedy
    is necessary with respect to the accounts: see Furrow and Zacks, at pp. 9-10.
    Thus, the passing of accounts does not fit within the first part of the
Limitations Act, 2002
definition
    of claim.

[36]

Drawing
    on
Armitage
, the motion judge reasoned that if an estate trustees
    application to pass accounts is not a claim within the meaning of the
Limitations
    Act
, then neither is a beneficiarys notice of objection filed in response
    to that application. That is because in a notice of objection the beneficiary
    is seeking answers to questions about steps taken by the estate trustee during
    the currency of an administration of an estate: at para. 31. If the objections
    are accepted by the court, no additional funds would be payable immediately to
    Elizabeth as beneficiary of the discretionary trust. However, [t]he corpus of
    the estate would be enlarged  [which] ultimately, could increase the amount
    available to be paid to Elizabeth, but only if she survives to age 60: at para.
    32.

[37]

There
    is force to the argument that if the estate trustees initial application to
    pass accounts is not a claim within the meaning of the
Limitations Act
,
    then neither is a responding objection made by the beneficiary within that
    proceeding.

[38]

Mr.
    Shaw points to a footnote in
Armitage
to resist the force of that
    argument. Having found that a passing of accounts under the
SDA
is not
    subject to the basic two-year limitation period in the
Limitations Act
,
    the court added in a footnote:

I do not mean to categorically provide that the
Limitations Act, 2002
has
    no applicability to the passing of accounts process under the SDA. In
    particular,
it may be that the filing by a beneficiary of
    a notice of objection after an attorney has sought a passing of accounts is a
    claim within the meaning of the
Limitations Act, 2002
.
However, I
    leave this determination to another case where it arises directly on the facts.
    [emphasis added.]

[39]

Mr.
    Shaw submits this footnote established that a notice of objection to accounts
    filed by a beneficiary is subject to the
Limitations Act
if the
    factual circumstances allow it to meet the definition of claim within that
    Act.

[40]

I
    do not read
Armitage
in that way. The footnote is
obiter
,
    doing nothing more than leaving to another case the issue of whether a notice
    of objection could constitute a claim. It does not resolve the matter, nor
    does it detract from the logic of the motion judges reasoning.

The Effect of Pre-Taking of Compensation

[41]

Mr.
    Shaw further contends that because the notice of objection seeks a reduction of
    compensation that he pre-took as estate trustee, which could result in an order
    that he pay money back to the estate, Ms. Wall is seeking to remedy an injury,
    loss or damage that occurred as a result of [his] act or omission. He submits that
    if he had not pre-taken compensation, Ms. Walls notice of objection might not
    be a claim because he would not have to repay any money.

[42]

I
    am not persuaded by this argument.

[43]

Pre-taking
    of compensation refers to an estate trustee taking compensation out of estate
    assets prior to passing his accounts. The general rule is that an estate
    trustee may pre-take compensation only (i) upon agreement of all persons with a
    vested or contingent interest (if they are
sui juris
), (ii) where
    approved by the court, or (iii) where the will so provides:
Probate
    Practice
, at p. 568.

[44]

Although
    the practice of pre-taking compensation is common, an estate trustee that does
    so outside of those three circumstances risks liability for breach of trust:
Probate
    Practice
, at pp. 568-571;
Re Knoch
(1982), 12 E.T.R. 162 (Ont.
    Surr. Ct.), at p. 174. On a passing of accounts, the estate trustee risks court
    approval of a reduced amount of compensation and an order requiring repayment
    of the difference to the estate:
Probate Practice
, at p. 569;
Re
    Pilo Estate
, [1998] O.J. No. 4521 (Ont. Ct. J. (Gen. Div.)), at paras. 56-57.

[45]

Whether
    a notice of objection to accounts constitutes a claim should not depend on
    the pre-taking of compensation. A notice of objection serves the same
    procedural function whether or not compensation has been pre-taken  it
    notifies the judge inquiring into the accounts of objections for which the
    estate trustee must provide explanations. The effect of a court accepting an
    objection to the estate trustees compensation is also the same in both
    circumstances  a reduction in the estate trustees approved compensation
    payable by the estate.

C.

The
    Passing of Accounts Regime

[46]

In
    addition to the language of the
Limitations Act,
the
Estates Act
and the
Rules of Civil Procedure
,
the policy and
    practical implications of subjecting a notice of objection to accounts to the
    basic two-year limitation period in the
Limitations Act

also weigh against accepting the position advanced by Mr. Shaw.

The nature of a passing of accounts application

[47]

As
    this court noted in
Armitage
, an application to pass accounts does not
    possess the remedial characteristics typically associated with a civil
lis
between two parties.
Although s. 49(3) of the
Estates
    Act

refers to the judges power to inquire into any
    complaint or claim of a person interested in the passing of accounts, it also highlights
    a key difference between a passing of accounts application and the typical civil
    proceeding: a passing of accounts initiates a judicial inquiry into the
    affairs of an estate. A conventional civil claim, if successful, results in
    judgment in favour of the claimant. By contrast, after inquiring into a notice
    of objection on a contested passing of accounts, a judge
may order the
    executor  to pay such sum by way of damages or otherwise
to the estate
, but the form of judgment
    prescribed by r. 74.18(14) does not provide for any personal remedy in favour
    of an objecting beneficiary:
Estates Act,
s. 49(3).

Maintaining the balance of power between estate trustee and beneficiary

[48]

Finally,
    interpreting s. 4 of the
Limitations Act
as capturing r. 74.18(7)
    notices of objection to accounts would risk insulating an estate trustees
    management of an estate from effective scrutiny. As mentioned, no Ontario law
    imposes an obligation on an estate trustee to pass accounts at fixed periods of
    time.
Armitage
holds that an application to pass accounts does not
    fall within s. 4 of the
Limitations Act
. As a result, an estate trustee
    can apply to pass accounts that pre-date the issuance of the application by
    more than two years.

[49]

If
    a beneficiary was precluded by s. 4 of the
Limitations Act
from
    objecting to those accounts, an estate trustee who wished to avoid scrutiny would
    have a perverse incentive to simply wait out the two-year limitation period
    knowing that the beneficiarys objections would be statute-barred. The longer
    the estate trustee waited to pass accounts, the greater the period of his
    management of the estate he could remove from a contested hearing. While a
    court possesses the power to inquire into accounts in the absence of a notice
    of objection, as a practical matter the court relies on beneficiaries
    objections to direct its inquiry.

[50]

Such
    an uneven application of the
Limitations Act
would place many
    beneficiaries in the difficult position of having to rebut the presumption in
    s. 5(2) of the
Limitations Act
that they first knew of their claim
    against the estate trustee on the day the act or omission of the estate trustee
     a questioned disbursement or taking of compensation - took place. To avoid
    such a result, beneficiaries would be forced to bring annual applications to
    compel estate trustees to pass accounts, unnecessarily increasing the amount of
    estate litigation in this province.

D.

Conclusion

[51]

I
    conclude that the filing of a r. 74.18(7) notice of objection to accounts in
    response to an application to pass accounts initiated by an estate trustee is
    not captured by s. 4 of the
Limitations Act
. Accordingly, the motion
    judge did not err in dismissing Mr. Shaws motion to strike Ms. Walls notice
    of objection.

VII.

DISPOSITION AND COSTS

[52]

For
    the reasons set out above, I would dismiss the appeal.

[53]

The
    parties agree that they will return before the motion judge to fix the costs of
    the motion. As to the costs of the appeal, the parties agree that in the event
    the appeal is dismissed, Ms. Wall is entitled to costs in the amount of
    $10,000.00, inclusive of applicable taxes and disbursements. They disagree about
    who should pay those costs. Mr. Shaw submits that they should be paid by the
    estate; Ms. Wall argues that they should be the personal responsibility of Mr.
    Shaw.

[54]

In
    my view, Mr. Shaw should be personally responsible for the costs. In bringing a
    motion to strike out the notice of objections he acted unreasonably and in his
    own self-interest. In those circumstances, he is not entitled to
    indemnification by the estate:
Brown v. Rigsby
, 2016 ONCA 521, 350
    O.A.C. 236, at para. 14.

[55]

I
    conclude that Mr. Shaw acted unreasonably for the following reasons. The
Rules
    of Civil Procedure
direct that an estate trustee who seeks to pass his
    accounts must use the summary form of civil proceeding  an application. Rule
    74.18 creates a summary process where, in the event a notice of objection
    necessitates a contested passing of accounts hearing, the application judge can
    give directions for the process to adjudicate the contested issues: r.
    74.18(13.1). Where on-going case management is available, those directions
    often are made by the case management judge:
Re Vano
(2009), 54 E.T.R.
    (3d) 280 (Ont. S.C.).

[56]

Rule
    74.18 was not designed for the summary passing of accounts process to become
    bogged down by time-consuming and cost-imposing pre-hearing motions.
    Appropriate directions for any necessary pre-hearing steps can be obtained from
    the application judge or case management judge in accordance with r.
    74.18(13.1).

[57]

I
    regard Mr. Shaws motion to strike out Ms. Walls notice of objection as
    substantially akin to a motion for partial summary judgment. He sought to
    eliminate the only detailed notice of objection to his accounts by obtaining,
    prior to the hearing, a final evidence-based determination that Ms. Walls
    notice of objection had no effect because of acquiescence, laches or
    prescription. Had he succeeded, he would have cleared the way to seek an
    uncontested judgment on accounts.

[58]

This
    court has held that motions for summary judgment are not available in
    proceedings commenced by way of a notice of application, in the absence of an
    order that converts the application into an action:
Maurice v. Alles
,
    2016 ONCA 287, 130 O.R. (3d) 452, at paras. 32 and 33. Layering a summary
    judgment type motion on top of a summary application generally does nothing
    more than increase costs and delay the final adjudication of the dispute on the
    merits.

[59]

That
    is what has happened in the present case. The order of February 16, 2016,
    directed the parties to follow an agreed-upon process to prepare for the
    passing of accounts hearing, which they were to schedule on the first
    available date after October 31, 2016. That hearing did not take place.

[60]

In
    his consent order for directions dated August 4, 2016, DiTomaso J. ordered that
    the passing of accounts trial be scheduled on the earliest available date
    after April 30, 2017. That did not occur.

[61]

Instead,
    a hearing on the merits was deferred until the motion to strike was argued in
    early 2018. Then this appeal was argued in October 2018. So, here the
    litigation stands, some two years after the hearing on the merits should have
    been held, mired in an unreasonable summary judgment-type motion by the estate
    trustee. That kind of litigation delay by an estate trustee who has been
    ordered to account for his administration of the estate is unacceptable.

[62]

I
    would order that Mr. Shaw pay Ms. Wall costs of the appeal in the amount of
    $10,000, inclusive of disbursements and applicable taxes.

Released: DD Nov 21 2018

David Brown J.A.
I agree. Doherty J.A.
I agree. G.T. Trotter J.A.





[1]
For a description of the doctrines of latches and acquiescence, see Matthew
    Furrow & Daniel Zacks, The Limitation of Applications to Pass Accounts
    (2016) 46 Adv. Q. 230 at 241.



[2]

Estates Act
, s.
50
(1) An executor or
    an administrator shall not be required by any court to render an account of the
    property of the deceased, otherwise than by an inventory thereof, unless at the
    instance or on behalf of some person interested in such property or of a
    creditor of the deceased, nor is an executor or administrator otherwise
    compellable to account before any judge.


