



COURT OF APPEAL FOR ONTARIO

CITATION: Rubner v. Bistricer, 2019 ONCA 733

DATE: 20190919

DOCKET: C65323

Feldman, Pepall and Miller JJ.A.

In the Matter of the Appointment of a
    Litigation Guardian for Eda Rubner and
The Substitute Decisions Act, 1992

BETWEEN

Joseph Rubner (also known as
    Yossi Rubner) and Marvin Rubner, in their capacity as Joint Attorneys for
    property acting under a Continuing Power of Attorney for Property granted by
    Eda Rubner dated January 12, 2003

Applicants/Respondents

and

Alexander Bistricer
,
Brenda Bistricer
, Eda Rubner, in her personal capacity, in
    her capacity as a Trustee of the Bistricer/Rubner Family Trust, and in her
    capacity as Bare Trustee through Eda Rubner Realty a sole proprietorship in the
    Lower Fourth Joint Venture, Michelle Levinson and 975273 Ontario Limited

Respondents/
Appellants

Anne Posno and Amy Sherrard, for the
    appellants, Alexander Bistricer and Brenda Bistricer

David Steinberg, for the respondent Brahm
    Rosen in his capacity as Litigation Guardian for Eda Rubner

Arieh Bloom, for the respondents Marvin
    Rubner and Joseph Rubner in their capacity as Joint Attorneys for Property of Eda
    Rubner

John Adair, for the respondent Joseph
    Rubner

Ian C. Matthews, for the intervenors on
    the appeal Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy
    (Penlow) Limited, 1214850 Ontario Inc., Mattamy Realty Limited, Ruland Realty
    Limited, and Bratty Building
[1]

Heard: November 28, 2018

On appeal from the judgment of Justice
    Frederick L. Myers of the Superior Court of Justice, dated March 22, 2018, with
    reasons reported at 2018 ONSC 1934, and from the costs order, dated May 14,
    2018, with reasons reported at 2018 ONSC 3038.

Feldman J.A.:

OVERVIEW

[1]

The issues before the court arise out of a
    financial dispute among adult siblings over the entitlement to part of an
    interest in a very valuable investment that was made by their father in the
    1960s. The investment was a 10% interest in a large future residential
    development in Oakville, Ontario. The balance is owned by affiliates of Mattamy
    Homes (collectively Mattamy Homes). The investment was always held by the
    mother in trust for the three siblings, in equal shares. This reflected her
    clear and uncontested intention to benefit her three children equally. In
    recent years, the daughter, who lives in the United States, disclaimed her
    interest in the investment, for tax reasons.

[2]

When distributions began to be made by Mattamy
    Homes in 2014, they were paid to the mother and deposited into two bank
    accounts opened for her. By that time, one of the brothers had sold his share
    to Mattamy. The other brother claimed that he had already received his one-third
    share of the investment from the mother some years earlier. The sister claimed
    that the mother had made an oral gift to her of the distributions from the one-third
    portion of the investment that reverted to the mother following the sisters
    disclaimer.

[3]

It was not disputed that half the funds in the
    bank accounts belonged, beneficially, to the brother who had not sold his
    interest. The central issue on the appeal is whether the other half of the
    funds in the bank accounts belonged beneficially to the mother or to the
    sister. For the reasons that follow, I would hold that those funds were held by
    Eda Rubner, the mother, as bare trustee for the benefit of the sister, Brenda
    Bistricer.

FACTS

[4]

Marvin Rubner, Joseph Rubner, and Brenda
    Bistricer are siblings. Their mother, Eda Rubner, is over 90 years old and was found
    to lack capacity to manage her property around November 2016. Marvin and Joseph
    Rubner hold powers of attorney for property for Eda Rubner, and have been
    managing her property since August 2016. Joseph lives with and cares for his
    mother.

[5]

Karl Rubner, Eda Rubners late husband and the
    childrens late father, purchased a 10% interest in the Lower Fourth Joint
    Venture (the Joint Venture) in 1969. The Joint Venture owned land in Oakville
    that has become very valuable over time. Mattamy Homes currently owns the
    remaining 90% interest in the Joint Venture, plus a further 3.33% that Marvin
    Rubner sold to it in 2013.

[6]

Eda Rubner was always the legal owner of the
    Rubner familys Joint Venture interest, although it was initially purchased in
    the name of Eda Rubner Realty Limited, a company that never existed. Eda and
    Karl Rubner intended each of their children to have and enjoy a one-third share
    of the Joint Venture interest.

[7]

In 1972, Eda Rubner wrote a letter to the
    manager of the Joint Venture (the 1972 letter). Though the parties could not
    confirm whether that letter was sent to the manager in 1972 (or ever), Marvin
    Rubner sent a copy of the letter to an accountant at Mattamy Homes in 2003. Karl
    Rubner was still alive at that time. In the letter, Eda Rubner stated I would
    like to inform you that the one tenth that is in Eda Rubner Realtys name in
    the above mentioned venture is being held in trust for her three children,
    one-third for Brenda Rubner, one-third for Marvin Rubner, one-third for Joseph
    Rubner.

[8]

Brenda Bistricer and her husband Alex Bistricer
    reside in the United States. After receiving tax advice, Brenda Bistricer disclaimed
    her entitlement to the one-third of the Joint Venture interest that her parents
    intended she have. The trial judge found that by 2014, she had disclaimed her
    interest. All family members agree that it is Eda Rubner who therefore owns
    that one-third of the Joint Venture interest.

[9]

Up to 2009, Eda Rubner paid the cash calls from
    Mattamy on the entire Joint Venture interest. However, beginning in 2009, each
    sibling paid one-third of the cash calls on the Joint Venture. Marvin and
    Joseph Rubner gave evidence that they paid the cash calls on their shares because
    they understood themselves to be beneficial owners of their respective thirds
    of the interest. Brenda Bistricer gave evidence to the effect that she paid the
    cash calls on the other one-third on the understanding that she was acting on
    behalf of Eda Rubner, who she said was no longer comfortable making such large
    payments at her age. Brenda Bistricer was comfortable with the arrangement
    because she believed that she would eventually inherit the one-third interest
    and be gifted any proceeds of income distributions.

[10]

Brenda Bistricer gave evidence that there was a
    family meeting in 2012 or 2013 when Marvin Rubner raised the issue of selling
    the Lower Fourth investment to Mattamy Homes. By that time, both Marvin and
    Joseph had each asserted their ownership of one third of the investment. Brenda
    had disclaimed hers. Eda Rubner suggested that she would sell Marvins one
    third, pay the tax and give him the proceeds, but he wanted his one third in
    his name. At that time, Eda Rubner said that with respect to Brendas share in
    the investment, which Brenda had disclaimed for tax reasons, Eda would gift to
    Brenda all future distributions, tax paid. Joseph Rubners evidence was that
    there was a meeting where someone brought up the idea that Eda Rubner could
    declare the income from distributions and gift the proceeds but he could not
    remember any other details. Marvin Rubner denied that there was ever an
    intention to bequeath Brendas interest or gift the distributions to her. There
    is no written record of what occurred at the family meeting.

[11]

Following that meeting, in 2013, Marvin Rubners
    interest was formally transferred to him by Eda Rubner and he then sold his
    interest to Mattamy Homes for $3 million.

[12]

Eda Rubner executed a new will in 2014, at a
    second meeting with a lawyer, Joseph Rubner, and Brenda and Alex Bistricer. The
    application judge stated that it is clear from email correspondence that
    between the two meetings the structure and contents of the new will were
    dictated by Joseph Rubner and the Bistricers without reference to Eda Rubner:
    at para. 82.

[13]

In her previous 2003 will, the three children
    were named as residuary beneficiaries of Eda Rubners estate in equal shares.
    Marvin Rubner and two neutral non-relatives were named as executors. In the
    March 2014 will, the three siblings were named as estate trustees. At that time
    they were already engaged in litigation over the siblings respective shares in
    another family investment. Joseph Rubner stated in his cross-examination that
    he instructed the lawyer to add himself and Brenda Bistricer as estate trustees
    so that they could outvote Marvin Rubner in the event of disagreement.

[14]

The new will contained a clause stating that Eda
    Rubner held legal and beneficial title to the one-third interest that was
    previously held in trust for Brenda Bistricer. It instructed the trustees to
    transfer Eda Rubners interest in or proceeds from the Joint Venture to
    Brenda Bistricer: see
Rubner v. Bistricer
, 2018 ONSC 1934, 36 E.T.R.
    (4th) 79, at para. 85. Further, the clause stated that Joseph Rubner had
    previously received his one-third interest.

[15]

The lawyer later prepared primary and secondary
    wills to replace the March 2014 will, and they were executed by Eda Rubner in
    September 2014.

[16]

In December 2014, the Joint Venture began making
    income distributions, with cheques payable to Eda Rubner Realty. The first distribution
    was in the amount of $1,830,202.68 in December 2014 and the second was $1,200,006.00
    in February 2015. As Eda Rubner Realty did not exist, steps were taken by
    Joseph Rubner and the Bistricers to register that business name for Eda Rubner,
    then two bank accounts were opened to receive the distributions  one Canadian
    dollar account and one US dollar account. Joseph took his mother to open the
    Canadian dollar account, and Brenda and Alex Bistricer took her to open the US dollar
    account. Joseph Rubner declared half of the proceeds as income. The other half
    was declared by Eda Rubner and the tax was paid out of the bank account.

[17]

It was understood by all parties that half of
    the monies deposited into the accounts were for Joseph Rubner and half were for
    Brenda Bistricer. The legal basis for that understanding became the subject of
    this action and appeal. In his affidavit, Joseph Rubner explained that he
    believed he could direct his mother to make payments out of the account for him
    as a result of [his] ownership of 1/3 of the Lower Fourth Joint Venture. He
    believed Brenda Bistricer could direct their mother regarding her half because
    of the 1972 trust.

[18]

Eda Rubner signed a number of blank cheques for
    the two accounts. Those cheques were filled in by Joseph Rubner to pay amounts
    for himself and for Brenda Bistricer. They were also filled in by Alex and
    Brenda Bistricer.

[19]

For example, Joseph Rubner invested in a project
    operated by Alex Bistricer in Maryland. On September 2, 2015, he took his
    mother to the bank to wire $1,000,000 (USD) on his behalf to the US law firm
    acting on the project and $500,000 (USD) on Brenda Bistricers behalf. Then in
    November, 2015 Alex Bistricer told Joseph Rubner, and he agreed, that he wanted
    Joseph Rubner and Brenda Bistricer to have equal investments in the project. As
    a result, Alex Bistricer filled in one of the blank cheques from the US account
    and paid Joseph Rubner $250,000 (USD) from Brenda Bistricers share to equalize
    the investments. Joseph Rubner stated that Eda Rubner never received statements
    or distributions from the Maryland investment, but he did, and he believes that
    Brenda Bistricer did.

[20]

Brenda Bistricer did not keep the cheque books
    for the two accounts containing the funds she understood had been gifted to
    her. She gave evidence that she trusted her brother to keep the cheque books.
    She would ask him to make out a cheque and have Eda Rubner sign it when she
    wanted to use the funds to pay her Canadian expenses. Joseph Rubner stated that
    in June 2015, Alex Bistricer asked to hold the cheque books for both accounts so
    that he could pay an accountant for the preparation of Eda Rubners 2014 tax
    returns. The cheques had been signed in blank by Eda Rubner on request of
    Joseph Rubner.

[21]

When Alex Bistricer returned the cheque books to
    Joseph Rubner, Joseph Rubners evidence was that two cheques were missing from
    each book. One of them was used to pay the accountant and another was the one to
    Joseph Rubner to equalize the Maryland investment. The other two had been
    filled in by Alex Bistricer in December 2016 to pay out the balances in the two
    accounts, $246,500 (USD) and $165,000 (CAD), to Brenda Bistricer. He did that
    because once Marvin and Joseph Rubner began acting as Eda Rubners attorneys
    for property in August 2016, they used money from the two accounts to pay Eda
    Rubners litigation guardian and their lawyer, who represents them in their
    capacity as attorneys for property. The application judge found that [t]hey
    know that they are drawing money for their mothers use that was supposed to go
    to Brenda Bistricer but for her tax problems: at para. 16.

[22]

No further income distributions have been delivered
    to Eda Rubner on the Joint Venture interest: Mattamy Homes has held them back
    pending determination of who is legally and beneficially entitled to the
    one-third of that interest that was in dispute.

[23]

Joseph and Marvin Rubner, in their capacity as
    joint attorneys for property, applied to the court for advice and direction.
    They sought the opinion, advice or direction of the court on the question of
    who held the remaining 1/3 beneficial interest of Eda Rubner Realtys trust
    interest in the Lower Fourth Limited Venture and posed certain specific
    questions for the court, including whether that remaining interest was held in
    trust for Brenda Bistricer.

[24]

They also sought an order requiring Brenda and
    Alex Bistricer to account for all proceeds withdrawn from the two TD bank
    accounts registered in the name Eda Rubner Realty between September 2, 2015 and
    December 22, 2016 and a declaration that all funds that the Bistricers withdrew
    from Eda Rubners accounts are held in trust for Eda Rubner.

[25]

Among the grounds listed for the Application in
    respect of the accounting for the bank accounts were:

z)       The TD Bank Accounts US5099 and 6555 are accounts held in
    the name of Eda Rubner Realty and were opened by Eda to receive distributions
    from the Lower Fourth Venture;

aa)     approximately $165,000 (CDN) and $996,500 (USD) has been
    withdrawn from 6555 and US5099 by Brenda and/or Alex for their benefit.

[26]

Brenda Bistricer brought a cross-application
    seeking the following relief:

A declaration that all funds that were held in
    the two TD bank accounts were the property of Brenda Bristricer;

An order requiring her brothers to account for
    all proceeds withdrawn from the accounts from August 1, 2016 onwards; and

A declaration that all funds withdrawn from
    the accounts by her brothers are held in trust for Brenda Bistricer.

[27]

She also brought an application against Brahm
    Rosen in his capacity as Eda Rubners litigation guardian seeking an order
    requiring Mr. Rosen to account for any funds that Marvin and Joseph Rubner paid
    to him that were drawn from Eda Rubners accounts.

[28]

The application and cross-application were heard
    together with a summary judgment motion brought by Alex Bistricer in a separate
    action that was commenced by parties representing the Rubner 6.67% interest in the
    Joint Venture against Mattamy Homes. The summary judgment motion sought to
    dismiss the significant counterclaim in that action by Mattamy Homes.

THE APPLICATION JUDGES FINDINGS

[29]

The application judge found that the 1972 letter,
    whether or not it was ever sent or delivered, created a valid trust. It is
    clear that Eda Rubner intended to hold undivided one-third interests in the familys
    10% Joint Venture investment in trust for each child: at para. 115. Eda
    Rubners declaration of trust was sufficient to constitute the trust  because
    she was both the settlor and trustee, she did not have to send the letter: at
    paras. 117-18. Because the 1972 letter contained no powers of revocation, the settlor,
    Eda Rubner, did not have the power to revoke or alter the declared terms of the
    trust: at para. 126. Brenda Bistricer therefore retained her beneficial
    interest until she renounced or disclaimed it.

[30]

The application judge found that Brenda
    Bistricer renounced or disclaimed her interest in the Joint Venture by no later
    than March 2014, through her planning, expressed intentions, and deliberate
    conduct: at paras. 38, 135-37. Her beneficial interest resulted back to Eda
    Rubner.

[31]

With respect to the funds in the two bank
    accounts from the Joint Venture distributions, the application judge made a
    number of significant findings:

1)

By signing and delivering cheques that were cashed, Eda Rubner made
    valid, one-off gifts from the income distribution funds that she held in the
    two bank accounts before she was declared legally incapable.

2)

There was insufficient evidence to make a conclusion that Eda
    Rubner lacked the capacity to manage her own affairs prior to her being
    declared legally incapable in 2016: at para. 15.

3)

There was no evidence supporting any doubt that Eda Rubner always
    intended Brenda Bistricer to have [the funds from the two bank accounts that
    were wired and paid to her by cheque prior to November 2016]: at para. 39.

4)

There is no doubting that Eda Rubner always intended the final
    one-third interest to belong to Brenda Bistricer. It is only Brenda Bistricers
    disclaimer and renunciation that is impairing the fulfilment of Eda Rubners
    intention that Brenda Bistricer own the capital interest and the income that it
    generates: at para. 161.


[32]

However, the application judge rejected Brenda
    Bistricers claim to the funds in the accounts based on a gift by her mother of
    all future distributions from the Joint Venture. He held that Eda Rubners
    alleged gift of all future income distributions could not succeed in law, and that
    the giving or taking of signed blank cheques did not, without more, amount to a
    valid gift: at paras. 40, 147-48, 154-56. Because an effective gift requires
    delivery, a promise to give a gift in future is not an effective gift and is
    not binding. Furthermore, cheques are not effective gifts until cashed; at the
    time a cheque is cashed, the donor account holder must still intend the funds
    to be gifted: at para. 177.

[33]

With respect to the two cheques that the
    Bistricers made out and cashed in December, 2016, the application judge found
    that on December 22, 2016, Eda Rubner did not have capacity to direct her bank
    to give the funds in the two accounts to Brenda Bistricer. He concluded on that
    basis that Brenda Bistricer was not entitled to the funds that Alex Bistricer
    had withdrawn from the two accounts in December 2016, and that she was not
    entitled to any future income distributions paid on the one-third interest that
    she had disclaimed or renounced.

[34]

The application judge also concluded that Brenda
    Bistricer could not rely on the doctrine of equitable estoppel to ground a
    right to the income distributions. Brenda Bistricer argued that Eda Rubner was
    estopped from denying the one-time gift of all future income because she
    (Brenda Bistricer) relied on the gift in making withdrawals to pay expenses.
    The application judge determined there was no evidence to support an estoppel
    against Eda Rubner because Brenda Bistricer was entitled to use funds actually
    given to her as each cheque was cashed or each wire sent: at para. 158. Her
    use of funds was therefore not unequivocally referable to there being a
    one-time promise that future distributions would belong to her even if she were
    to disclaim her interest in the interim: at para 158.

[35]

The application judge also rejected Brenda
    Bistricers argument that the 2014 wills could be relied upon to corroborate Eda
    Rubners intention to bequeath the remaining one-third interest and to gift to
    her the income distributions referable to that interest. Because he concluded
    that the contents of the will were dictated by Joseph Rubner and the Bistricers,
    the application judge was not prepared to rely on them as representing independent
    evidence of corroboration of Eda Rubners intent: at para. 168.

[36]

As a result of these legal and factual findings,
    the application judge made the following consequential dispositions:

1)

Eda Rubner is the legal, beneficial, and
    sole owner of the remaining one-third interest in the Joint Venture

2)

Brenda and Alex Bistricer are obliged to
    account for the funds they removed from the two accounts on December 22, 2016
    and repay them to Eda Rubner.

3)

Alex Bistricer is liable as a trustee de
    son tort or for conversion of the funds he improperly took in concert with
    Brenda Bistricer: at para. 178.

4)

The income distribution funds held back by
    Mattamy Homes are due to Eda Rubner, represented by Marvin and Joseph Rubner
    under powers of attorney: at para. 179.

5)

Brenda Bistricer has no claim against Brahm
    Rosen, the litigation guardian, for an accounting: at para. 180

[37]

In the Mattamy Homes action, the motion by Alex
    Bistricer for summary judgment was dismissed and some ancillary orders in that
    action were subsequently made. One order found a number of facts were not in
    dispute, including: Brenda Bistricer renounced or disclaimed her interest in [the
    Joint Venture] by no later than March 2014. The order finding facts not in
    dispute was not appealed.

[38]

In subsequent reasons, the application judge
    awarded costs of the application and cross-application as follows: substantial
    indemnity costs payable by Brenda and Alex Bistricer to Marvin and Joseph Rubner
    as attorneys for property of Eda Rubner in the amount of $180,000; and partial
    indemnity costs payable by Brenda Bistricer to Brahm Rosen in the amount of
    $82,708.54.

ISSUES

[39]

The appellants appealed the decision denying
    Brenda Bistricer any interest in the distributions from the Joint Venture on a
    number of legal and factual bases, described in the Notice of Appeal, the Supplementary
    Notice of Appeal and their factum on appeal. They also sought leave to appeal
    the award of costs.

[40]

However, at the opening of oral argument,
    counsel for the appellants narrowed the basis for the substantive appeal to one
    ground: whether the application judge erred by failing to find that Eda Rubner
    held one half of the distributions from the Joint Venture that had been deposited
    into the two bank accounts, as well as all future distributions, as bare
    trustee for Brenda Bistricer.

[41]

Counsel also argued that the application judge
    erred in making certain findings about the 2014 will on the basis of a paper
    record when there was significant evidence in dispute. The consequence, counsel
    stated, is that those findings may be treated as
res judicata
in any
    prospective will litigation that may be brought in the future.

[42]

As a result, the issues on appeal are:

1)

Did Eda Rubner hold one half of the distributions from Lower Fourth
    in the two bank accounts as bare trustee for Brenda Bistricer and what impact,
    if any, did this have on Alex Bistricers liability for conversion or as
    trustee
de son tort
in respect of the two December 2016 cheques from the
    accounts to Brenda Bistricer?

2)

Does Eda Rubner also hold one half of the future distributions from
    Lower Fourth as bare trustee for Brenda Bistricer?

3)

Are the appellants entitled to advance the bare trust argument on
    appeal?

4)

Is it appropriate or necessary for the court to make any order
    respecting any findings made by the application judge in respect of the 2014
    will?

5)

The costs appeal.

ANALYSIS

Issue #1: Did Eda Rubner hold one half of the distributions from the
    Joint Venture in the two bank accounts as bare trustee for Brenda Bistricer?

[43]

For the following reasons, I conclude that on
    the facts a bare trust was established over the funds held in the bank
    accounts.

[44]

There is no issue that Brenda Bistricer
    originally held the beneficial interest in a one-third share in the Joint
    Venture interest, the same as her two brothers. But, apparently for tax reasons,
    she disclaimed that interest. Throughout these proceedings, she took the
    position that she did not have any proprietary interest in the Joint Venture,
    the trial judge so held, and there has been no appeal from that holding.
    However, she never took the position that she had disclaimed any amounts that
    would come to her from her mother after her disclaimed interest resulted back to
    her mother. It is those distributions that she claimed were hers, as a gift
    from her mother. Brenda Bistricers main position on the application was that
    having disclaimed entitlement to the one-third interest in the Joint Venture
    that was designated and held in trust for her by her mother, and that interest
    having become her mothers beneficially, her mother then told her that she
    would give her the distributions on what had been her interest, after paying
    the tax on them, and that she would leave her interest to Brenda Bistricer in
    her will.

[45]

And that is exactly what happened: the
    distributions were deposited into the Eda Rubner Realty bank accounts that
    Joseph Rubner and Brenda Bistricer opened with their mother for that purpose;
    Eda Rubner paid the tax on Brenda Bistricers half, while Joseph Rubner paid
    the tax on his half; Eda Rubner signed blank cheques to be filled in to make
    any payments requested by Joseph Rubner or Brenda Bistricer out of their
    respective halves; and Eda Rubner executed a new will which stated that Joseph
    Rubner had received his share of the Joint Venture investment and that Eda
    Rubner bequeathed her interest in the Joint Venture to her daughter, Brenda
    Bistricer.

[46]

However, Brenda Bistricers claim to one half of
    the contents of the bank accounts and to future distributions based on an oral
    gift from her mother could not succeed in law, and the trial judge so held.
    Unfortunately, regardless of intention, a promise to give a future gift does
    not create an effective gift at law. An effective gift requires delivery. While
    delivery does not have to be co-incident with the statement of intent to give,
    it must occur to make the gift complete: Bruce Ziff,
Principles of Property
    Law
, 6th ed. (Toronto: Carswell, 2014), at pp.15960-62;

Teixeira v.
    Markgraf Estate
, 2017 ONCA 819, 137 O.R. (3d) 641, at paras. 38,
    40-44.

[47]

In this case, once Eda Rubner became mentally
    incapable of handling her own affairs, she could no longer complete a gift. The
    application judge concluded that the cheques that were cashed and cleared
    before Eda Rubner was found to be incapable were valid one-off gifts. But,
    Brenda Bistricer was not entitled to the future distributions on the basis of
    the gift theory advanced by counsel for the appellants on the application. However,
    this does not preclude the possibility of a bare trust over the contents of the
    bank accounts. Indeed, although no substantive argument ensued, the application
    judge noted that he raised this issue with counsel at the hearing.

[48]

I will subsequently address whether the
    appellants are, as the respondents contend, precluded from arguing this trust
    issue on appeal, but first I will address whether there is any merit to the
    appellants trust argument.

(a)

Applicable trust principles

[49]

There are four requirements for establishing a
    valid express trust. The relevant parties to the trust must have capacity;
    there must be certainty of intention to create a trust, certainty of
    subject-matter, and certainty of objects; the trust must be constituted,
    meaning the trustees must hold legal title to the trust property; and the
    required formalities must be met: A.H. Oosterhoff, Robert Chambers &
    Mitchell McInnes,
Oosterhoff on Trusts: Text, Commentary and Materials
,
    8th ed., (Toronto: Carswell, 2014), at p. 189. The three certainties are
    reflexive in the sense that, although they are considered one at a time,
    consideration of the certainty of subject matter and certainty of objects may
    inform (reflect back on) the matter of certainty of intention:
Angus v.
    Port Hope (Municipality)
, 2017 ONCA 566, 28 E.T.R. (4th) 169, at para. 95,
    leave to appeal refd [2017] S.C.C.A. No. 382.

[50]

There are no issues relating to capacity in
    respect of the alleged trust. The bank accounts were opened and the
    distributions deposited into them in 2015, before there was any issue with
    respect to Eda Rubners capacity to manage her affairs. The application judge
    found that Eda Rubner made valid gifts of funds that were in the two accounts
after
they were opened. He specifically stated that there was no proof that she
    lacked capacity in August 2015 when the $1.5 million (USD) payment was made
    out of those bank accounts: at para. 161. Neither the appellants nor the respondents
    challenged that capacity finding on appeal.

[51]

Additionally, because the alleged trust is over
    two bank accounts and not over land or an interest in land, there are no formal
    requirements that the trust be evidenced in writing:
Statute of Frauds
,
    R.S.O. 1990, c. S.19, ss. 4, 9-11; see also
In the Estate of Jean Elliott

(2008), 45 E.T.R. (3d) 84 (Ont. S.C.), at para. 42. There is therefore no
    issue as to formalities.


i.

Certainty of intention and constitution
    in the context of a self-declared trust

[52]

The court must be satisfied that the settlor
    intended to create a trust, that is, intended that the trustee be required to
    hold the trust property for the benefit of the beneficiary. A trust will only
    exist where the trustee is obliged to deal with the property on the
    beneficiarys behalf. If the purported trustee is permitted, but not required,
    to deal with the property for the benefit of the beneficiary, then a trust
    relationship does not exist: Oosterhoff, at p. 193; Eileen E. Gillese,
The
    Law of Trusts
, 3rd ed. (Toronto: Irwin Law Inc., 2014), at p. 42.

[53]

Whether certainty of intention to create a trust
    exists is a question of fact:
Elliott
, at para. 29. Certainty of
    intention can be express or implied, can arise from words or acts, and does not
    require that the settlor use the technical language of trust  there is no
    magic in the word trust: Oosterhoff, at 193; Donovan W.M. Waters, Mark R.
    Gillen & Lionel D. Smith,
Waters Law of Trusts in Canada
, 4th ed.
    (Toronto: Carswell, 2012) at pp. 141-44; see also
Commercial Union Life
    Assurance Co. of Canada v. John Ingle Insurance Group Inc.

(2002),
    61 O.R. (3d) 296 (C.A), at paras. 58-63;

Belokon v. Kyrgyz Republic
,
    2016 ONCA 981, 136 O.R. (3d) 39, at para. 49, leave to appeal refd [2017]
    S.C.C.A. Nos. 74, 75 ([C]ertainty of intention can be established by words or
    conduct other than explicit trust language, provided the words or conduct
    convey the requisite intention.);
Elliott
, at paras. 26-31.

[54]

A settlor need not fully understand the legal
    concept of trust in order to hold the requisite certainty: Oosterhoff, at p. 193.
    In
Paul v. Constance
, [1977] 1. W.L.R. 527 (C.A.), at p. 530, the
    English Court of Appeal did not require the settlor to have used stilted
    lawyers language to find that the settlor intended to create a trust. Scarman
    L.J., for the court, determined that the court must instead consider what was said
    and done by the plaintiff and the deceased during their time together against
    their own background and in their own circumstances: p. 530. This echoes Prof.
    Oosterhoffs assertion that certainty of intention is a question of
    construction: Oosterhoff, at p. 193; see also
Gillese, at p. 42
.

[55]

Where the settlor of a trust intends to act as a
    trustee, no transfer of property is required to constitute the trust: the
    property is already vested in the trustee. The settlor must identify the
    property and self-declare a trust over it: Oosterhoff, at p. 245. The trust
    exists as soon as the declaration occurs, since the settlor/trustee has parted
    with equitable title to the property in favour of the beneficiary: at p. 255;
    Waters, at pp. 184-85. It is important to reiterate that equity focuses on
    substance  the settlor does not have to speak or think in the terms of a trust:
    Oosterhoff, at p. 257. Where a person intends to transfer the beneficial
    ownership in some property to another person, they may create a trust
    regardless of legal acumen: Oosterhoff, at p. 257 (citing
Paul v.
    Constance
).

[56]

A bare trust is generally accepted to be a trust
    where the trustee holds property without any active duties to perform other than
    to convey the trust property to the beneficiaries on demand: Waters, at p. 33.
    The hallmarks of a bare trust are: (1) the beneficiaries must be able to call
    for the property when they please, and (2) the trustee must not have (or must
    no longer have) active duties in respect of the trust property: Waters, at p.
    34. The duty to guard the property prior to conveyance is considered passive:
    Waters, at p. 34.


ii.

Certainty of subject-matter

[57]

A valid trust will feature property that is
    identifiable: Oosterhoff, at p. 199; Waters, at p. 159;
Angus
, at
    para. 112. In addition to the trust property being identifiable, there must
    also be sufficient certainty respecting the quantum of the trust property to
    which a beneficiary is entitled: Oosterhoff, at p. 212; Waters, at p. 159.

[58]

Any type of property can be the subject-matter
    of a trust, save for future property, that is, property that the settlor does
    not yet own. However, a right (e.g. contractual) to receive property in the
    future can be held in trust, as can a vested interest in property that has not
    yet been possessed by the settlor. The property must be ascertained or
    ascertainable. The test for certainty of subject-matter applies at the moment
    that the trust is purportedly created: Oosterhoff, at p. 199-201.


iii.

Certainty of objects

[59]

Finally, the certainty of objects requirement
    provides that the beneficiaries of the trust must be sufficiently described to
    allow for trust performance: Oosterhoff, at p. 216; Waters, at pp. 167-68.

(b)

Application to the facts


i.

Certainty of intention/constitution

[60]

On
    appeal, the appellants argue that the conduct of Eda Rubner (as settlor and
    trustee), and Brenda Bistricer and Joseph Rubner (as beneficiaries) evinces a
    clear intention on the part of Eda Rubner to hold the two Eda Rubner Realty
    accounts in bare trust for Brenda Bistricer and Joseph Rubner, in equal shares.
    They rely on
Elliott
for the proposition that a trust can be
    established by conduct that displays a clear intention to hold an asset in
    trust for someone else.

[61]

As
    Lauwers J. (as he then was) reasoned in the
Elliott
case, where there is no formal trust documentation, the court is entitled to
    look at the actions of the parties, how they conducted themselves and what they
    said at the time in order to determine whether there was an intention by the
    settlor to create a trust.

[62]

Eda
    Rubner never said she was creating a trust over the monies that were deposited
    into the bank accounts. According to Brenda Bistricer, her mother had gifted
    the distributions to her and was leaving the balance of the 1/3 interest to her
    in her will.

[63]

While
    the application judge was unable to find a valid gift in law (or the required
    corroboration), he did not consider the evidence of what occurred when the
    distributions came to Eda Rubner on the basis that it demonstrated an intention
    to create a trust. He only looked at it from the point of view of whether there
    was a completed gift of all or part of the monies in the accounts, and came to
    the conclusion that each cheque that Eda Rubner wrote and that Brenda Bistricer
    cashed before Eda Rubner was declared incapable was a completed gift. This
    approach reflected the main thrust of the appellants argument that a gift was
    engaged. However, as the application judge himself noted, and as I will
    explain, what occurred here could also be characterized as the creation of a
    trust.

[64]

An
    isolated gift construct was not supported by the record. In my view, that
    finding of gifts by cheques written on the accounts is not consistent with the
    way the parties conducted themselves and the way they operated the accounts.
    Nor does it explain how the funds in the accounts were being treated in respect
    of Joseph Rubners half, which, by this time, he owned beneficially. Josephs
    interest was therefore no longer being held by Eda Rubner under the original
    (1972) trust.

[65]

The
    only legal mechanism that is consistent with what actually occurred is that
    when the Mattamy Homes distributions made out to Eda Rubner Realty were
    deposited into the accounts, Eda Rubner intended to hold them in trust, half
    for Joseph and half for Brenda Bistricer, to be paid out to them with cheques
    signed in blank by Eda Rubner on their direction. The parties subsequent
    conduct is, as in
Elliott
, evidence of this intention.

[66]

When
    the first distribution came in, Joseph and Brenda each took their mother to the
    bank to open the bank accounts to deposit the distributions. Because Eda Rubner
    Realty was the named owner of the remaining 6.67% interest in the Joint Venture
    on Mattamy Homess books (Marvin Rubner having sold his 3.33% share to Mattamy
    Homes in 2013), the distributions were paid to Eda Rubner Realty. That
    necessitated obtaining a registered business name for Eda Rubner in order to
    open the accounts and deposit the cheques. Brenda Bistricer lived in the United
    States but came to Toronto often to see her mother. Joseph Rubner lived with
    his mother and cared for her.

[67]

At the
    time the bank accounts were opened, Eda Rubner owned the one-third that had
    previously been designated for Brenda Bistricer. In 2013, Eda Rubner had given
    Marvin Rubner his one third, so that he could sell it to Mattamy Homes. Eda
    Rubner also transferred to Joseph Rubner his one third interest, although the
    documentation for that transfer was not produced in the record. The fact that
    it occurred was recited in the March 10, 2014 will of Eda Rubner, for which
    Joseph Rubner gave instructions. Joseph Rubner also testified that because he
    had received his one-third interest from Eda Rubner before the first
    distribution came from Mattamy Homes, he took his half of the amount received
    into his income and paid the taxes on it. Eda Rubner paid the taxes on the
    other half out of the funds in the bank accounts.

[68]

It
    was understood by Eda Rubner, Joseph Rubner and Brenda and Alex Bistricer that
    the monies in the bank accounts belonged half to Joseph and half to Brenda
    Bistricer. Eda Rubner signed blank cheques that were filled in by Joseph Rubner,
    and also by Alex Bistricer when he had the cheque books, for expenses as
    directed by Brenda Bistricer and by Joseph Rubner. There is no suggestion in
    the evidence that Eda Rubner ever personally spent any of the money in the
    accounts. The application judge found that when Marvin and Joseph Rubner began
    to use the funds in the accounts to pay the litigation expenses in August 2016,
    they knew that money was supposed to go to Brenda Bistricer: at para. 16.

[69]

Clear
    evidence of the parties understanding is contained in an email from Joseph
    Rubner to Alex Bistricer dated September 29, 2015. In that email, Joseph Rubner
    asks Alex Bistricer to confirm the amount owing to him from the Undivided
    Lower 4th Distributions. He lists four amounts totalling $3,234,163.17, which
    is then divided by two to equal $1,617,081.59. Next, he lists two amounts of $500,000
    (USD) referable to his investment in the Maryland project, and then those
    amounts are apparently converted into Canadian dollars for a total of $1,294,950.
    He subtracts the second amount from the first leaving $322,131.59. That is the
    amount he asks Alex Bistricer to confirm and the amount will be transferred to
    me, by cheque.

[70]

This
    is but one example of the parties conduct which demonstrates that the funds in
    the bank accounts were understood by all to be held in trust for Joseph Rubner
    and Brenda Bistricer, in equal shares. I am satisfied on all of the evidence
    that Eda Rubner intended to hold the contents of the bank accounts as bare
    trustee, and that certainty of intention is therefore met.

[71]

Nor
    do I consider the fact that the amount held for Brenda Bistricer was taken into
    income by Eda Rubner and the tax paid out of the bank account derogates from
    this conclusion. The history of how this investment was handled by the family
    members contains many inconsistencies and informalities. Before 2009, there
    were a number of cash calls made by Mattamy Homes which were paid by Eda Rubner
    even though she held the investment as bare trustee. The original trust
    document was a 1972 letter, possibly never delivered, and found years later in
    a file. Brenda Bistricers disclaimer of her interest was not done in a
    documented, formal manner, but by oral statements made on a number of
    occasions. Because it was always understood by everyone that the Joint Venture
    investment was to be split equally among the three children, the formalities,
    as among the family, were not a focus by this family.

[72]

Eda Rubner, as bare trustee, acted in accordance
    with each beneficiarys wishes with respect to declaring the distributions as
    income. Joseph Rubner gave evidence that he asked his mother to give him the
    distributions as they came in, and that he would take them into income and
    declare them himself. By contrast, Brenda Bistricer elected to have her mother
    declare the distributions, and take the net proceeds.
In my view, the mere fact that Eda Rubner declared
    Brenda Bistricers share of the distributions as income, apparently in
    accordance with a suggestion made by Alex Bistricer, does not detract from her
    intention to hold the funds in trust for Brenda Bistricer. That intention is
    clear from the parties conduct.


ii.

Certainty of subject matter

[73]

The actions of the parties with respect to the
    distributions that were deposited into the bank accounts defined clearly the
    subject matter of the trust over the contents of those accounts. As discussed
    above, it was understood among the parties, the settlor, Eda Rubner, and the
    two beneficiaries, Brenda Bistricer (and her husband Alex) and Joseph Rubner
    that those monies were being held in the account for their benefit on a 50/50
    basis.


iii.

Certainty of objects

[74]

There is no issue as to the certainty of objects
    of the Eda Rubner Realty accounts trust. As alleged by the appellants, the
    trust over the bank accounts is for the benefit of Brenda Bistricer and Joseph
    Rubner, in equal shares. The objects of the trust are clearly ascertainable and
    there is no issue as to the administration of the trust.

(c)

Conclusion on the bare trust over the contents
    of the bank accounts

[75]

In my view, the only characterization of the
    legal relationship regarding the funds deposited into the Eda Rubner Realty
    bank accounts opened in 2015 that reflects the actual conduct and stated
    understanding of all of the parties, in particular Eda Rubner, is a bare trust
    held by Eda Rubner for her two children, Brenda Bistricer and Joseph Rubner, in
    equal shares. The three certainties are clearly met, the trust was duly
    constituted, and there is no issue as to formalities.

[76]

Joseph Rubner has received his entire share of
    the trust property. Brenda received part of her share, but part was used by
    Marvin and Joseph Rubner acting as trustees for property of Eda Rubner to pay
    expenses of this litigation. Those monies must be accounted for and returned.

[77]

I make no comment on the tax implications, if
    any, that the relevant tax authorities may determine flow from the conclusion
    that Eda holds one half of the contents of the bank accounts as bare trustee
    for Brenda Bistricer.

(d)

Should Alex Bistricer be held liable as a
    trustee
de son tort
or for conversion?

[78]

It follows from this analysis that the
    application judges conclusion that Alex Bistricer was liable as trustee
de
son
    tort
or for conversion cannot stand and that the funds paid out of the
    accounts on December 22, 2016 belonged beneficially to Brenda Bistricer. There
    is no dispute that Joseph Rubner had already taken his share of the funds from
    the accounts before Alex Bistricer wrote the two cheques for the balance of the
    funds remaining in them (and before Joseph and Marvin Rubner, in their capacity
    as Eda Rubners attorneys for property, began paying expenses from the
    accounts). Under the bare trust, the trustee
[2]
was obliged to deliver the trust property on demand  Brenda Bistricer was
    entitled to receive those funds when she asked for them. I accept that Alex
    Bistricer effectively took it upon himself to act as a trustee and to possess
    and administer trust property, but he did not commit a breach of trust in so
    doing because he did not act inconsistently with the terms of the trust:
Air
    Canada v. M&L Travel Ltd.
, [1993] 3 S.C.R. 787, at pp. 808-09;
Royal
    Bank v. Fogler

(1991), 5 O.R. (3d) 734 (C.A.), at p. 743. The
    purpose of the bare trust over the accounts was for Eda Rubner to hold the
    funds until Brenda Bistricer and Joseph Rubner wanted them transferred into
    their possession. Alex Bistricers act of filling out the pre-signed cheques in
    favour of Brenda Bistricer and depositing the funds into Brenda Bistricers
    account fulfilled the terms of the trust.

[79]

Even if it could be said that Alex Bistricer
    dealt with the trust property in breach of trust, Brenda Bistricer acquiesced
    to the manner in which he dealt with the property to which she was beneficially
    entitled: see
Fogler
, at pp. 743-46; Waters, at pp. 1302-06. There is
    no issue that Brenda Bistricer knew and approved of Alex Bistricers actions,
    given her view that the funds already belonged to her: see
Rubner
, at
    para. 178.

[80]

Further, were the court to find Alex Bistricer
    liable as a trustee

de son tort
, the proper remedy would likely
    be a constructive trust over the funds in favour of Brenda Bistricer: Oosterhoff,
    at pp. 1128-29; Waters, at pp. 1340-41. The funds are already in her
    possession.

[81]

The application judges finding of conversion
    also cannot stand, as Alex Bistricers actions do not meet the test for
    conversion as set out in
373409
Alberta Ltd. (Receiver of) v. Bank of
    Montreal
, 2002 SCC 81, [2002] 4 S.C.R. 312, at paras. 8-10. The tort
    of conversion involves a wrongful interference with the goods of another, such
    as taking, using or destroying these goods in a manner inconsistent with the
    owners right of possession: at para. 8.

[82]

Because Alex Bistricer dealt with the funds in a
    manner that was consistent both with the purpose of the trust and with Brenda
    Bistricers beneficial interest in the trust property, and because the taking
    of the funds was done in concert with Brenda Bistricer, it is difficult to
    see his actions as a wrongful taking:
Rubner
, at para. 178. In the end
    result, Brenda Bistricer is entitled to the funds.

[83]

I would therefore set aside the finding of liability
    against Alex Bistricer.

Issue #2: Does Eda Rubner also hold one half of the future
    distributions from the Joint Venture as bare trustee for Brenda Bistricer?

[84]

This question must be answered in the negative.
    As discussed above, future property cannot be the subject matter of a trust. While
    a trust could legally have been declared by Eda Rubner over any chose in action
    she may have held to future distributions from Mattamy Homes, she did not do
    so.

[85]

The actions of the parties that establish the
    three certainties of a trust over the distributions that were deposited into the
    bank accounts do not relate to any amounts not yet deposited. Primarily, there
    is no action that relates to an intention to create a trust over any funds not
    yet deposited or over Eda Rubners interest in the Joint Venture.

Issue #3: Are the appellants entitled to advance the bare trust
    argument on appeal?

[86]

The respondents submit that the appellants are
    precluded from arguing on appeal that there was no gift of the future
    distributions, but rather the contents of the bank accounts were held by Eda
    Rubner as bare trustee, 50% each for the benefit of Brenda Bistricer and Joseph
    Rubner. They submit that this argument was not advanced before the application
    judge.

[87]

Counsel for the respondents also submits that
    had he known there were two potential trusts being alleged, one over the bank
    accounts, he would have cross-examined Brenda Bistricer about her statements
    that she had no beneficial interest in the Joint Venture.

[88]

I am satisfied that the respondents suffered no
    prejudice on this account. Counsel asked Ms. Bistricer regarding her disclaimer
    of any interest in the Joint Venture many times during the cross-examination
    and her position was clear. Her position was that she was not disclaiming the
    distributions from the Joint Venture that were deposited into the Eda Rubner
    Realty bank accounts and tax paid. Indeed, on at least one occasion, counsel
    for Brenda Bistricer interjected to clarify her objection to certain questions
    being put to Brenda by counsel for the intervenors which conflated the asset
    (the Joint Venture interest) and the income (the distributions).

[89]

I would reject the respondents objection to
    considering the trust issue on the appeal for the following reasons. When the
    relief sought and grounds listed in both the Application for advice and
    directions commenced by Joseph and Marvin Rubner and the Application commenced
    by Brenda Bistricer are considered together, it is clear that the ownership of
    the monies in the two bank accounts is in issue. The brothers relied on both
    rule 14.05 (3)(a)-(d) and s. 60 of the
Trustee Act
in support of their
    request for advice and directions. In
Hunter Estate v. Holton
(1992),
    7 O.R. (3d) 372 (Gen. Div.) the applicants relied on these provisions in
    seeking advice and directions as to whether it was lawful for the executors and
    trustee to transfer assets to two newly created trusts. Steele J. noted, at p. 376,
    that in a proper case the court should not limit its opinion narrowly when all
    of the issues are before it. Similarly, in this case, the court should not
    limit its advice and directions to the gift issue when the larger question of
    whether the funds in the bank accounts were the property of Brenda Bistricer is
    before the court.

[90]

Second, although no substantive argument was
    made, the application judge was obviously alive to the trust issue and
    expressly asked whether Eda Rubners statements might have amounted to an oral
    declaration by Eda Rubner that she holds income distributions after tax in
    trust for Brenda Bistricer: at para. 150.

[91]

Third, the facts and circumstances of what
    occurred are clear in the evidentiary record. It is only the legal characterization
    that is in issue. As this court stated in
Kaiman v. Graham
, 2009 ONCA
    77, 45 E.T.R. (3d) 163, at para. 18:

The general rule is that appellate courts will
    not entertain entirely new issues on appeal. The rationale for the rule is that
    it is unfair to spring a new argument upon a party at the hearing of an appeal
    in circumstances in which evidence might have been led at trial if it had been
    known that the matter would be an issue on appeal: 767269 Ontario Ltd. v.
    Ontario Energy Savings L.P., 2008 ONCA 350 (Ont. C.A.), at para. 3. The burden
    is on the appellant to persuade the appellate court that "all the facts
    necessary to address the point are before the court as fully as if the issue
    had been raised at trial": Ross v. Ross (1999), 181 N.S.R. (2d) 22 (N.S.
    C.A.), at para. 34, per Cromwell J.A.; Ontario Energy Savings L.P. at para. 3.
    This burden may be more easily discharged where the issue sought to be raised
    involves a question of pure law: see e.g. R. v. Vidulich (1989), 37 B.C.L.R.
    (2d) 391 (B.C. C.A.); R. v. Brown, [1993] 2 S.C.R. 918 (S.C.C.), per
    L'Heureux-Dubé J., dissenting. In the end, however, the decision of whether to
    grant leave to allow a new argument is a discretionary decision to be guided by
    the balancing of the interests of justice as they affect all parties: R. v.
    Warsing, [1998] 3 S.C.R. 579 (S.C.C.), per L'Heureux-Dubé J., dissenting; R. v.
    S. (K.) (2000), 50 O.R. (3d) 321 (Ont. C.A.); Vidulich at pp. 398-99.

See also
National Money Mart
    Company v. 24 Gold Group Ltd.
, 2018 ONCA 812, at paras. 37-41.

[92]

Here, the general rule is not engaged. The
    entire history of the Joint Venture investment shows that the family acted in a
    consistently informal manner with respect to its ownership. As non-lawyers,
    their characterization of the legal relationship was also informal and
    imprecise. As the application judge perceived, it was possible that the
    circumstances amounted to a bare trust in law. Indeed, he appears to have been
    satisfied that the evidentiary record was sufficient to address the issue
    himself, on submissions by counsel: see para. 150. I am satisfied that this
    court is well-placed, based on the evidentiary record before it, to respond to
    the request for advice and directions and to determine the correct legal
    characterization of Brenda Bistricers interest, if any, in the Joint Venture
    distributions attributable to her original one-third interest. It is therefore
    in the interests of justice to address it now on appeal.

Issue #4: Is it appropriate or necessary for the court to make any
    order regarding any findings made by the application judge in respect of the
    2014 will?

[93]

The appellants submit that the application judge
    erred in making certain findings regarding the 2014 will based on the paper
    record before him on the application in the face of significant evidence that
    conflicted with his findings. In particular, counsel referred to paras. 86,
    168, 171 and 172 of the reasons. The practical concern that counsel raised is
    that those findings may be treated as
res judicata
in any future litigation
    that may be brought seeking to challenge or uphold the will.

[94]

I agree with the appellants, that the
    application judge was not deciding whether the 2014 wills should be admitted to
    probate. He was only considering whether the wills could amount to corroboration
    of Eda Rubners intent to gift to Brenda her one-third of the Joint Venture
    investment. He found that he was not prepared to treat the wills as
    corroborative of Eda Rubners independent intent. see para. 173. In the context
    of the gift issue that was before him on the application, he was entitled to make
    that determination.

[95]

The issue raised regarding whether a finding in
    one proceeding will be treated as
res judicata
in another proceeding
    is to be answered by the judge hearing the possible will challenge litigation,
    the other proceeding. This court may only be called upon to address the issue
    on an appeal from a finding that it either is or is not
res judicata
.

Issue #5: Costs

[96]

As part of the costs awarded on the application,
    cross-application and summary judgment motion, the application judge awarded
    substantial indemnity costs in the amount of $180,000.00 in favour of Joseph
    and Marvin Rubner as joint attorneys for property of Eda Rubner, payable by
    Brenda and Alex Bistricer, and partial indemnity costs in the amount of
    $82,708.54 in favour of Mr. Rosen, the litigation guardian of Eda Rubner,
    payable by Brenda Bistricer.

[97]

In his reasons, the application judge accepted
    the respondents submission that the appellants engaged in litigation
    misconduct that warranted an elevated costs award. He awarded costs in favour
    of the litigation guardian on two bases: first, because he had successfully
    asserted Eda Rubners position and therefore Eda Rubner was entitled to recover
    costs from Brenda Bistricer, and second, because Brenda was unsuccessful in
    asking the litigation guardian to return funds paid to him by the attorneys for
    property out of the disputed bank accounts.

[98]

As I would allow the appeal in part with respect
    to the funds in the bank accounts, the mix of success has now changed. There
    will be no judgment against Alex Bistricer; the trustees for property will
    repay to the appellants all funds from the bank accounts that they removed; and
    Brenda and Alex Bistricer do not have to pay the funds removed in December 2016
    to Eda Rubner.

[99]

In those circumstances, the issue of the costs
    of the application and cross-application must be reconsidered. If the parties
    are unable to agree, counsel may provide written submissions to a maximum of 4
    pages regarding the costs of the application and of the appeal, given the mixed
    success. The court should be advised whether the parties have agreed within
    three weeks of release of these reasons.

CONCLUSION

[100]

I would allow the appeal and find that Eda Rubner held the bank
    accounts opened in the name of Eda Rubner Realty in 2015 as bare trustee for
    the benefit of Brenda Bistricer and Joseph Rubner, in equal shares. The monies
    withdrawn from that account by Marvin and Joseph Rubner must accordingly be
    accounted for. I would also set aside the findings of liability against Alex
    Bistricer.

Released: K.F. September 19, 2019

K. Feldman J.A.

I Agree. S.E. Pepall J.A.

I Agree. B.W. Miller J.A.





[1]
These parties were granted intervenor status on the appeal by order
    dated November 9, 2018.



[2]
Eda Rubner was trustee until she became legally incapable, and then
    her personal representatives became trustees under s. 3(2) of the
Trustee
    Act
, R.S.O. 1990, c. T.23.


