



COURT OF APPEAL FOR ONTARIO

CITATION: Gefen v. Gaertner, 2019 ONCA 233

DATE: 20190322

DOCKET: M50042 & M50043 (C66016 & C66072)

van Rensburg, Benotto and Harvison Young JJ.A.

IN THE MATTER OF ELIAS GEFEN, deceased

BETWEEN

Henia Gefen in her personal capacity and
as estate trustee of the Estate of Elias Gefen

Plaintiff (Appellant)

and

Arie Gaertner,
    Miller Canfield, Paddock and Stone, LLP,
The Jewish Home for the Aged, Baycrest Hospital,
Baycrest Centre for Geriatric Care,
Yehuda Gefen and
Harry Gefen

Defendants (
Respondent)

AND BETWEEN

Harry
    Gefen

Plaintiff by Counterclaim
    (Respondent)

and

Henia
    Gefen in her personal capacity and as estate trustee
of the Estate of Elias Gefen, Harvey Gefen
, Ashley Gefen,
Dundas-Thickson Properties Ltd., 1393522 Ontario Limited
and 1585708 Ontario Limited

Defendants by Counterclaim (
Appellants
)

AND BETWEEN

Harry Gefen

Third Party Plaintiff (Respondent)

and

Harvey
    Gefen

Third Party Defendant (Appellant)

Gregory Azeff and Stephanie De Caria, for the moving
    party, Ronald Rutman, the Estate Trustee During Litigation of the Estate of
    Elias Gefen

R.B. Moldaver, Q.C., for Henia Gefen

Sapna Thakker, for Harvey Gefen

A.A. Blumenfeld, for Harry Gefen

Heard and released orally: March 14, 2019

On appeal from the order of Justice Michael
    A. Penny of the Superior Court of Justice dated September 26, 2018, with
    reasons reported at 2018 ONSC 5698.

REASONS FOR DECISION

[1]

The estate of Elias Gefen has been the subject of ongoing litigation.
    The Estate Trustee During Litigation (ETDL) was appointed by Newbould J. On a
    subsequent motion to vary the terms of the appointment order, Penny J. determined
    that the ETDL could receive payments of his fees from certain properties. Henia
    Gefen in her personal capacity and as estate trustee appealed.

[2]

The ETLD moves to quash the appeal because it is governed by s. 28
    of the
Estates Act
, R.S.O. 1990,
    c. E.21
and, as such, the appeal lies to the Divisional Court. The responding
    parties (appellants on appeal) say that the appointment of the ETDL by Newbould
    J. was not made pursuant to the
Estates Act
but rather, r. 75 of the
Rules
    of Civil Procedure
or the courts inherent jurisdiction.

[3]

It is submitted that, because the attacks on the estate arise from an
    allegation of a constructive trust which does not touch on the validity of the
    will, s. 28 of the
Estates Act
is not engaged. We do not read s. 28 so
    narrowly and thus, do not accept the responding parties submissions. The
    allegation of constructive trust touches on the validity of the will or grant
    of administration. Applying a purposive approach to the wording of the whole of
    s. 28, it is clear that this litigation, which seeks to impose a constructive
    trust on the estate and its administration, is captured by s. 28.

[4]

Newbould J.s endorsement specifically refers to and applies
    the test articulated in
McColl v. McColl
, 2013 ONSC 5816 and
Re
    Groner Estate
, [1994] O.J. No. 140 (Gen.
    Div.)  two cases in which, in our view, appointment orders were made pursuant
    to the
Estates Act
. Further,
    we note that the wording of the appointment order tracks the language in s. 28.

[5]

The order is pursuant to
    the
Estates Act
. The
    appeal therefore lies to the Divisional Court and the appeal before this court is
    quashed.

[6]

The parties are to exchange
    and file written submissions as to costs limited to five pages  the moving
    parties by March 21, 2019 and the responding parties by March 28, 2019.

K. van Rensburg J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.


