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Court File No. 12-006130 (Objection File) Court File No. 12-006395 (Application File)

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ONTARIO SUPERIOR COURT OF JUSTICE

lN THE ESTATE OF DEBORAH DAWN KOENlc, deceased.

BETWEEN:
VINCENT DWIGHT BAILEY as THE ESTATE TRUSTEE of the ESTATE OF DEBORAH DAWN KOENtc Moving Party

-and-

DAMIEN KOENIG Respondent

FACTUM AND BOOK OF AUTHORITIES OF THE MOVING PARTY

Date: December3.2012

SmithValeriote Law Firm LLP

Barristers & Solicitors 105 Silvercreek Parkway North Suite 100 Guelph, Ontario N1H 654 Mark Muir Rodenburg (LSUC# 365811) mrodenburg@smithvaleriote. com 519-837-2100 Fax: 519-837-1617 Lawyers for the Moving Party

Tel:

TO

RAYSON BOYD LLP Barristers & Solicitors Suite 1501 5001 Yonge Street Toronto, Ontario M2N 6P6 Sharon G.H. Bond 416-630-5600 ext. 230 416-630-5906

Tel. Fax

Lawyers for the Respondent

AND TO:

Damien Koenig 2244 Concession Road 10 Burketon, Ontario

LOB 1BO

(905) 263-8257 Respondent

AND TO:

CLARKE L. MELVILLE Law Firm Barristers & Solicitors 50 Queen Street North Suite 820 Kitchener, Ontario N2H 6P4 Glarke L. Melville cmelville@situslex. com 519-579-8594 5'19-571-1805

Tel: Fax

Lawyers for the children of Deborah Dawn Koenig, deceased (being Damien Koenig, Jason Koenig, Sandra Koenig, Jeremy Koenig and Tiffany-Lynn Koenig)

Court File No. 12-006130 (Objection Fite) Court File No. 12-006395 (Application File)

ONTARIO SUPERIOR COURT OF JUSTICE

lN THE ESTATE OF DEBOMH DAWN KOENlc, deceased.

BETWEEN:
VINCENT DWIGHT BAILEY as THE ESTATE TRUSTEE of the ESTATE OF DEBORAH DAWN KOENTG
Moving Party

-and-

DAMIEN KOENIG Respondent

FACTUM AND BOOK OF AUTHORITIES OF THE MOVING PARTY

GENERAL BACKGROUND

1.

Deborah Dawn Koenig ("Deborah') was born on September 19, 1953 and passed away

on January 14,2012 atthe age of58.

Affidavit of Vincent Dwight Bailey sworn December 3, 2012 Motion Record of the Moving Party, Tab 2 at paragraph 2

2.

Deborah had five children from her first marriage, being Damien Koenig, Jason Koenig,

Sandra Koenig, Jeremy Koenig and Tiffany-Lynn Koenig. At the time of her death she was
divorced from her first husband and her second husband and she suffered from severe Multiple Sclerosis ("MS').

Affidavit of Vincent Owight Bailey sworn December 3,20'12 Motion Record of the Moving Party, Tab 2 at paragraph 3

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3.

Her brother, Vincent Dwight Bailey ("Vince"), used to visit Deborah XXXXXXXX per

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week/month/etc. at her home. As a result of her MS, Deborah was essentially confined to her
home and the surrounding neighbourhood. She was unable to drive a vehicle.

Affidavit of Vincent Dwight Bailey sworn December 3,2012 Motion Record of the Moving * Party, Tab 2 at paragraph

4.

Deborah called the offices of SmithValeriote Law Firm LLP on January 6,2010 and

advised that she wanted to her Will and powers of attorney revised. On March 23,2010 Diana

Piccoli, a lawyer at SmithValeriote, called Deborah and spoke to her on the telephone. During

that conversation, Ms. Piccoli advised her of the contents of her existing Will and powers of
attorney and Deborah advised Ms. Piccoli that she was content with her powers of attorney and that nothing had to be changed in that regard. Affidavit of Diana Piccoli sworn December 3,20'12 Motion Record of the Moving Party, Tab at paragraphs 2 and 3 and Exhibit A
3

5.

During that same telephone conversation on March 23,2010 Deborah advised Ms. Piccoli

very clearly that she did not want to leave anything to any of her children as she was living alone

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in Guelph with severe Multiple Sclerosis and none of them had taken care of her. Deborah
indicated that she wanted her brother Vince to be her executor and to accept compensation for

doing so and that her entire estate should be divided between three charities, Grace Trinity
Church, the Society for the Prevention of Cruelty to Animals and the MS Society of Canada.

Affidavit of Diana Piccolisworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraph 4 and Exhibit A

6.

During that same conversation Deborah advised Ms. Piccoli of her assets, the major asset

of which was her home at 71 Fairmeadow Drive, Guelph, Ontario. She was very clear with
regards to her wishes and Ms. Piccoli had no reason whatsoever to doubt that Deborah had
capacity to instruct her and to execute a Will. Affidavit of Diana Piceoli sworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraph 5 and Exhibit A

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7.

Ms. Piccoli then arranged for Deborah's Will to be drafted and, since she was unable to

attend at the offices of SmithValeriote due to her Multiple Sclerosis, it was arranged that Michelle

Kelly, now a lawyer in the offices of SmithValeriote but at the time an articling student, and
Alexandra Findlay, an articling student at the time, attend at her residence to review the Will wfth her and to have it signed and witnessed. Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab at paragraph 6
3

Affidavit of Michelle Kelly sworn December 3,2012 Motion Record of the Moving Party, Tab 4 at paragraph 2

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8.

On May 11,2010 Ms. Kelly and Ms. Findlay attended at Deborah's home. When they

arrived at her door, Deborah was expecting them. Ms. Kelly reviewed each clause of the Will with

Deborah and she understood what each clause meant. Deborah specifically asked Ms. Kelly if

there was

possibility of anybody attacking her Will after she

died. In particular

Deborah

mentioned that she thought her children might not be happy as she had decided to leave them out
of her

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Will. Ms. Kelly asked her why she had done this and she indicated to Ms. Kelly that she had

been sick for a long time and that none of her children had assisted her in any meaningfulway and that she would therefore preferto help out people that could use her money, ratherthan giving it to her children. Deborah was very certain about this. lt was clear to Ms. Kelly that Deborah had full capacity to provide instructions and to execute a Will.

Affidavit of Michelle Kelly sworn December 3,2012 Motion Record of the Moving Party, Tab 4 at paragraph 3 and Exhibit A

9.

On May 11 ,2010 Deborah executed the Will in the presence of Ms. Kelly and Ms. Findlay,

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who each signed the Will as a witness. Affidavit of Michelle Kelly sworn December 3,2012 Motion Record of the Moving Party, Tab 4 at paragraph 4 and Exhibit B

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10.

On January 14,2012 Deborah passed away and Vince retained SmithValeriote Law Firm

LLP to assist him with the administration of Deborah's Estate.

Affidavit of Vincent Dwight Bailey sworn December 3,2012 Motion Record of the Moving Party, Tab 2 at paragraphs 2 and 6 Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab at paragraph 8
3

11. t -,:_ It t I I i I 12.

Sometime shortly after March 29,2012 Vince received a letter in the mail from Clark

Melville, a lawyer in Kitchener, Ontario. In this letter Mr. Melville advised that he was "the lawyer for the children of Deborah Dawn Koenig". In the letter Mr. Melville asked to be provided with a copy of the Last Will and Testament of Deborah Dawn Koenig.

Affidavit of Vincent Dwight Bailey sworn December 3,2012 Motion Record of the Moving Party, Tab 2 at paragraph 7 and Exhibit A

}tff[Tlfl,;""

Piccolisworn December 3,2012 Motion Record of the Moving Party, Tab 3

On April 26,2012 Ms. Piccoli sent a copy of Deborah's Last Will dated May 11, 2010 to

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Clark Melville. Attached as Exhibit "8" to this my affidavit is a copy of the covering letter dated April 26, 2012.

iltliiifl""ff:l"ir,?#sht

Bairev sworn December 3,2012 Motion Record or the Movins

Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraph 10 and Exhibit B

13.

On June 20,2012 Ms. Piccoli spoke to Mr. Melville by telephone and Mr. Melville advised

her during that conversation that he had no instructions to take any further action with regards to Deborah's Last Will.

I
rt
E E

i1fiiif!:i;:lrir,t#ght

Bairev sworn December

3' 2012 Motion Record of the Moving

Affidavit of Diana Piccolisworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraph 11

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14.

Vince then arranged to have Deborah's home sold and an Agreement of Purchase and

Sale was eventually entered into in or around early October,2012. The closing date has been extended twice and the sale of the home is now scheduled to close on December 14,2012. In order to properly transfer the home, Vince needs to obtain a Certificate of Appointment of Estate Trustee With A Will.

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Affidavit of Vincent Dwight Bailey sworn December 3,2012 Motion Record of the Moving Party, Tab 2 at paragraph 10 and Exhibit B Affidavit of Diana Piccoli sworn December 3,2}1zMotion Record of the Moving Party, Tab at paragraphs 12 and 13
3

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15.
wilt.

ln early November,2012 Ms. Piccoli's otfice filed with the court all the necessary

documentation to enable Vince to obtain a Certificate of Appointment of Estate Trustee With A

Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab at paragraph 14 and Exhibits C, D and E

16.

Shortly after Ms. Piccoli's office filed the documentation with the court office, she received

a Notice that Objection had been Filed from the court. Attached to the Notice from the court was

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a Notice of Objection of Damien Koenig dated February 16, 2012 as filed by his lawyer, Sharon

Bond. The Notice of Objection filed by Damien

objection.

Koenig does not state any reasons at allfor his

Affidavit of Diana Piccoli sworn December 3,2A12 Motion Record of the Moving Party, Tab at paragraphs 15 and 19 and Exhibit F

17.

ln addition to not providing any reasons for his objection, the Notice of Objection filed by

Damien Koenig states that the nature of his interest in Deborah's Estate is that "l am a son of the deceased and believed that I was an Estate Trustee until recently. Neither I nor my siblings have

been shown a copy of the Will and we wish to ensure that our mother's estate is properly administered." As set out above Damien Koenig and his siblings' lawyer, Mr. Melville, was

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provided
Objection.

a copy of Deborah's Last Will in late April, 2A12, after the date on the Notice

of

Affidavit of Diana Piccolisworn December 3,2012 Motion Record of the Moving Party, Tab at paragraph 10 and Exhibit F

18.

On November 8, 2012 Ms. Piccoli's office served a Notice to Objector on Sharon Bond

and Clark Melville, as the lawyers for Damien Koenig and, in addition, Ms. Piccoli advised that of

the imminent sale of Deborah's home.

Affidavit of Diana Piccolisworn December 3,2012 Motion Record of the Moving"Party, Tab 3 at paragraph 16 and Exhibit G

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19.

On November 12,2012 Ms. Piccoli received an emailfrom Clark Melville, in response to

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her letterto him dated November 8,2012. ln his email Mr. Melville advised Ms. Piccolithat "as the lawyer for all of the children of the deceased, I do not have instructions to take any further steps in this matter. I understand that Damien Koenig may be delivering a Notice of Appearance. I do not act for him in this regard." Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraph 17 and Exhibit H

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20.

On November 29, 2012 a copy of the Notice of Appearance of Damien Koenig arrived in

Ms. Piccoli's office. The Notice of Appearance indicates that Damien Koenig desires "to oppose

tl

the issuing of a Certificate of Appointment of Estate Trustee for the reasons set out in the Notice
of Objection filed". As set out above, Damien Koenig did not provide any reasons for his objection in the Notice of Objection filed. The only concern expressed by Damien Koenig is his Notice of Objection was that he had not been provided with a copy of Deborah's Will but shortly after his lawyer requested to be provided with a copy of that Will, a copy was provided. Affidavit of Diana Piccoli sworn December 3,2012 Motion Record of the Moving Party, Tab 3 at paragraphs 10 and 19 and Exhibits F and I

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ORDER SOUGHT

21.

The Moving Party seeks an Order removing or striking out the Notice of Objection of the

Respondent Damien Koenig as such Notice of Objection states no reasons for the objection and
the only concern expressed in the Notice of Objection (that Damien Koenig was not provided with a copy of Deborah's Last Will) was satisfied more than 7 months ago.

22.

A Notice of Objection .... may be removed by order of the court.

Rule 75.03(2) of the Ru/es of Civil Procedure, Factum and Book of Authorities of the Moving Party, Tab 1

23.

Where matters are not provided for in the Ru/es of Civil Procedure, the practice shall be

determined by analogy to them.

Rule 1.04(2) of the Rules of Civil Procedure, Factum and Book of Authorities of the Moving Party, Tab 1

24.

Although a Notice of Objection is not a "pleading", it is a court document which, when filed,

results in court proceedings. Rule 21.01 (1Xb) provides that "a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence". ln

this case the Notice of Objection filed by Damien Koenig discloses no reasons for his objection
and thus is analogous to disclosing no reasonable cause of action or defence. Rule 21.01(lXb) of the Ru/es of Civil Procedure, Factum and Book of Authorities of the Moving Party, Tab 1

25.

As before, although a Notice of Objection is not a "pleading", it is a court document which,

when filed, results in court proceedings. Rule 21.01(3Xd) provides that "a defendant may move

before a judge to have an action ... dismissed on the ground that the action is frivolous or vexatious or is othenruise an abuse of the process of the court." Rule 25.11 provides that "the court may strike out or expunge all or part of a pleading or other document ... on the ground that
the pleading or other document is scandalous, frivolous or vexatious or is an abuse of the process
of the

court."

In this case the document filed by Damien Koenig (his Notice of Objection) discloses

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Cours of Justice Act - R.R.O. 1990, Reg. 194

http://www.e-laws.gov.on.calhtml/regs/english/elaws_regs_900194_e.htm

ulr ljnrailo
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e-Laws

Frangais

Courts of Justice Act

R.R.O. 1990, REGULAIION 194

RUTES OF CIVIL PROCEDURE Consolidation Period: From Jul"v l. 2012 to the e-Laws currenclz date.
Last amendment: O. Reg. 55112. This is the Englislt version of a bilingual regulation.
SIJMMARY OF CONTENTS

GENERAL MATTERS
Rule
I

2 J

4 4.1

Citation, Application and Interpretation Non-Compliance with the Rules Time Court Documents Duty of Expert

PARTIES AND JOINDER

5

6
6.1

7
8 9
10

l1

t2 l3

Joinder of Claims and Parties Consolidation or Hearing Together Separate Hearings Parties under Disability Partnerships and Sole Proprietorships Estates and Trusts Representation Order Transfer or Transmission of Interest Class Proceedings and Other Representative Proceedings

Intervention

COMMENCENTENT OF PROCEEDINGS
13.1

t4

l5

Place of Commencement and Hearins or Trial Originating Process Representation by Lawyer

SERVICE
16

t7
18

Service of Documents Service outside Ontario Time for Detivery of Statement of Defence

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f-"
General Principle

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1.04 (.1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194,

r. 1.04 (1).
Proportionality
(

1.1) In applying these rules, the court shall make orders and give directions that are

proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

Matters Not Provided For

Where matters aro not p.rovided for in these rules, the practice shall be determined by andory to them. R.R.O. 1990, Reg. 194, r. l.0a Q).

(!)

Party Acting in Person by a lawyer but acts in person in accordance with subrule 15.01 (2) or (3), anything these rules require or permit a lawyer to do shall be done by the paffy. R.R.O. 1990, Reg. 194, r. 1.04 (3); O. Reg. 575107, s. 1. nParlt and Party" Costs

Q) Where a party to a proceeding is not represented

({)

If a statute, regulation or other document refers to party and party costs, these rules

apply as if the reference were to partial indemnity costs. O. Reg. 284101, s. 3.

"Solicitor and Client" Costs

(j)

If a statute, regulation or other document refers to solicitor and client costs, these rules

apply as if the reference were to substantial indemnity costs. O. Reg. 284101, s. 3.

ORDERS ON TERMS

1.05 When making an order under these rules the court may impose such terms and give such directions as are just. R.R.O. 1990, Reg. 194, r. 1.05. FORMS
Use of Forms

1.06 {1) The forms prescribed by these rules shall be used where applicable and with such variations as the circumstances require. O. Reg. 17106, s. L
Table of Forms

In these rules, when a form is referred to by number, the reference is to the form with that number that is described in the Table of Forms at the end of these rules and is available on the Internet through wr,vw.ontariocourtforms.on.ca. O. Reg. 771A6, s. |.

e)

PRACTICE DIRECTIONS Definition

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compliance with any ruie at any time. R.R.O. 1990, Re-e. 194, r. 2.03.

RULE 3TIVIE CONIPUTHiilON

In the computation of time under these rules or an order, except where contrary intention appears,

3.01

(l)

(a) where there is a reference to a number of days between two events, they shall be' counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words "at least" are used; (b) where a period of seven days or less is prescribed, holidays shall not be counted; (c) where the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday; and

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(d) service of a document, other than an originating process, made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. R.R.O. 1990, Reg. 194, r. 3.01 (1); O. Reg. 394109, s. 3; O. Reg. 438/08,
s. 4.

Where a time of day is mentioned in these rules or in any document in a proceeding, the time referred to shall be taken as the time observed locally. R.R.O. 1990, Reg. 194, r. 3.01 (2).

(!)

EXTENSION OR AB RIDGMENT
General Powers of Court

3.02 {1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. R.R.O. 1990, Reg. 194, r. 3.02 (1).
A motion for an order extending time may be made before or after the expiration of the time prescribed. R.R.O. 1990, Reg. 194, r.3.02 (2).
Times in Appeals

(e

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G) An order under subrule (1) extending or abridging a time prescribed by these rules and
relating to an appeal to an appellate court may be made only by R.R.O. 1990, Reg. 194, r.3.02 (3). Consent
a

judge of the appellate court.

in Writing

I t t

filing or delivering a document may be extended or abridged by filing a consent. O. Reg. 555196, s. 1; O. Reg. 427 l0l, s. 2; O. Reg. 438/08, s. 5.

G) A time prescribed by these rules for serving,

\YHEN PROCEEDINGS MAY BE HEARD

Hearings Throughout the Year

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G) No evidence
(a) under clause

is admissible on a motion,

(a), except with leave of a judge or on consent of the parties; (b) under clause (1) (b). R.R.O. 1990, R.eg. 194, r.2t.0t (2).
To Defendant

(i)

ground that,

A defendant may move before a jr,ldge to trave an action stayed or dismissed on the

Jurisdiction
(a) the court has no jurisdiction over the subject maffer of the action;

Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceedin g Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the parties in respect of the same subject matter, or
same

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse ofthe process of the court, and the judge may make an order or grant judgment accorclingly. R.R.O. 1990, Reg. 194, r. 21.01 (3).

MOTION TO BE MADE PROMPTLY

21.A2 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs. R.R.O. Igg0, Reg. 194, r.21.02.

FACTUMS REQUIRED 21.03 (1) On a motion under rule 21.01, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law re6ed on by the party. O. Reg. 14104, s. 15.

(D The moving party's factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394109,
s.5.

Q) The responding party's factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. O. Reg. 394109. s. 5.
(4)
Revoked: O. Reg. 394109, s. 5.

RULE 22SPECIAL CASE

WHERE AVNLABLE

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specifically pleaded, take the opposite parfy by surprise or raise an issue that has not been raised by a previous pleading shall deliver a reply setting out that rnatter, subject to subrule 25.06 (5) (inconsistent claims or new claims). R.R.o. 1990, Reg. 194, r. 25.0s (2).

Reply Only lVhere Required

R.R.O. 1990, Reg. 194, r. 25.08 (3).

G) A party shall not deliver a reply except where required to do so by subrutre (1) or (2).
Were
lr{o

Deemed Deniat of Altegations

Reply

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t

the prescribed time shall be deemed to deny the allegations of fact rnade in the defence of the opposite party. R.R.O. 1990, Reg. 194, r. 2s.08 (4).

(4) A party who does not deliver a reply within

RULES OF PLEADING
Admissions

APPLICABLE TO REPLIES

25.09 (1) A party who delivers a reply shall admit every allegation of fact in the opposite party's defence that the pafty does not dispute. R.R.o. 1990, Reg. 194, r.25.09 (l).
Effect of Deniol of Agreement

(!) Where an agreement is alleged in a defence, a denial of the agreement in the opposite party's reply, or a deemed denial under subrule 25.08 (4), shall be construed only as a denial of the making of the agreement or of the facts from which the agreement may be implied by law, and not as a denial of the legality or sufficiency in law of the agreement. R.R.O. 1990, Reg. 194, r. 25.09 (2).
PARTICULARS 25.10 Where apafiy demands particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply them within seven days, the court may order particulars to be delivered within a specified time. R.R.o. 1990, Reg. 194, r.25.10.

STRIKING OUT A PLEADING OR OTHER DOCUMENT

25.11 The court may strike out or expunge all or pari of a pleading or other document with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse ofthe process ofthe court. R.R.O. 1990, Reg. 194, r.25.11.

RULE 26AMENDMENT OF PLEADINGS

GENERAL POWER OF COURT 26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournrnent. R.R.O. 199A, Reg. 194, r.26.01.

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Cours of Justice Act - R.R.O. 1990. Res. 194

http://www.e-laws.gov.on.calhtrnl/regs/englislrlelaws_regs_900 194_e.htm

Registrar's Notes

If a beneficiary or spouse of a beneficiary under a wiil or codicil has attested the will or codicil or has signed the will or codicil for the testator, and the provision for the beneficiary appears to the registrar to be void by reason of section 12 of the Succession Low Reform Act,the registrar shall note the fact on the will or codicil and the note shall be reproduced on the copy attached to the certificate of appointment. O. Reg. 484/94, s. L2.

(!

(S) Where a devise or bequest of a beneficial interest in property to a former spouse df the testator, or an appointment of a former spouse as estate trustee, or the conferring of a general or special power of appointment on a former spouse, is revoked by reason of section 17 of the Succession Law Reform Act, the registrar shall note the fact on the will or codicil and the note shall be reproduced on the copy of the will that is attached to the certificate of appointment. O. Reg. 484194, s. 12.
DEPOSIT EQUAL TO TAX
Deposit Puyable at Time of Application The deposit equal to tax referred to in the Estate Administration Tax Act, 1998 shall be paid at the time an application for a certificate of appointment of an estate trustee is made. O. Reg. 24100, s. 14.

74.13

(l)

Exception

(2)

The court may issue the certificate of appointment where the applicant,

(a) fiies with the court an affidavit as to the estimated value of the estate at the time of the application and pays the deposit equal to tax calculated on the estimated value; and (b) provides an undertaking to the court that the applicant will, within six months after Sving the undertaking, file a sworn statement of the total value of the estate and pay the additional tax payable if the actual value is higher than the estimated value. O. Reg. 24100, s. 14.
The court may issue the certificate of appointment without the payment of a deposit equal to tax if the applicant has obtained an order under subsection 4 (1) of the Estate Administration Thx Act, 1998. O. Reg. 24100, s. 14. Where an undertaking given under subrule (2) is not fulfilled or the terms of an order under subsection 4 (1) of the Estate Administration Tax Ac6 1998 are not complied with, the court may, on the request of the registrar, make an order for compliance. O. Reg. 24100, s. 14.

Q)

(4)

ISSUING CERTIFICAIE OF APPOINTMENT OF ESTAIE TRUSTEE

Where an application for a certificate of appointment as an estate trustee and the material required to accompany the application are complete, the registrar may issue the certificate. O. Reg. 484194, s. 12; O. Reg.-740194, s.4.

74.14

(l)

Where, in the opinion of the registrar, the application and accompanying material are not complete or contain information on which the registrar has a doubt, the application shall be referred to a judge for determination. O. Reg. 484194, s. 12.

(2)

ORDERS FOR ASSISTANCE

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Kinds of Orders

In adclition to a motion under section 9 of the Estates.Act, appears to harre a financial interest in an estate may move,

74.15

(l)

a:ny person

who

Order to Accept or Refuse Appointment

(a) for an order (Form 74.36) requiring any person to accept or refuse an appointment an estate trustee with a will; {
as

(b) for an order (Form 74.37) requiring any person to accept or refuse an appointment an estate kustee without a will;

as

Order to Consent or Object to Proposed Appointment

(c) for an order (Form 74.38) requiring any person to consent or object to a proposed appointment of an estate trustee with or without a will;

Order to File Statement of Assets of the Estate

(d) for an order (Form 74.39) requiring an estate trustee to file with the court a statement of the nature and value, at the date of death, of each of the assets of the estate to be
administered by the estate trustee;

Order for Further Particulars

(e) after receiving the statement described in clause (d), for an order for further particulars by supplementary affidavit or otherwise as the court directs;

Order to Beneficiary Witness

(0 for

an order (Form 74.40) requiring a beneficiary or the spouse of a beneficiary who witnessed the will or codicif or who signed the will or codicil for the testator, to satisfy the court that the beneficiary or spouse did not exercise improper or undue influence on the testator;

Order to Former Spouse

(g) for an order (Form 74.41) requiring a former spouse of the deceased to take part in a determination under subsection 17 (2) of the Succession Law Reform Act of the validity of the appointment of the former spouse as estate trustee, a devise or bequest of a beneficial interest to the former spouse or the conferring of a general or special power of appointment on him or her;

Order to Pass Accounts (h) for an order (Form 74.42) requiring an estate trustee to pass accounts; and Order for Other Matters
(r) for an order providing for any other matter that the court directs. O. Reg. 484194,

s.12.
It{otice of motion

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(1) (e), which requires 10 days notice to the estate trustee. O. Reg. 484194, s.
Service

{2

A motion under subrule (1) may be made without notice, except a motion under clause
12.

An order referred to in subrule (1) and an order for production under section 9 of the Estates Act shall,be served by personal service, by an alternative to personal service or as the court directs. O. Reg. 484194, s. 12. Examination
The court rnay require any person to be examined under oath for the purpose deciding a motion under subrule (1). O. Reg. 484/94, s. 12.

({)

of

PASSING OF ESTAIE ACCOUNTS

74.16 Rules 74.17 and74.18 apply to accounts of estate trustees and, with necessary modifications, to accounts of trustees other than estate trustees, persons acting under a power of attorney, guardians of the property of mentally incapable persons, guardians of the property of a minor and persons having similar duties who are directed by the court to prepare accounts relating to their management of assets or money. O. Reg. 484194, s. 12; O. Reg. 69195, s. 13.

FORM OF ACCOUNTS
74.17 (L) Estate trustees shall keep accurate records of the assets and transactions in the estate and accounts filed with the court shall include,
(a) on a first passing of accounts, a statement of the assets at the date of death, crossreferenced to entries in the accounts that show the disposition or partial disposition of the assets; (b) on any subsequent passing of accounts, a statement of the assets on the date the accounts for the period were opened, cross-referenced to entries in the accounts that show the disposition or partial disposition of the assets, and a statement of the investments, if any, on the date the accounts for the period were opened;

(c) an account of all money received, but excluding investment transactions recorded
under clause (e);

(d) an account of all money disbursed, including payments for trustee's compensation and payments made under a court order, but excluding investment transactions recorded under clause (e); (e) where the estate trustee has made investments, an account setting out,

(i) all money paid out to purchase investments, (ii) all money received by way of repayments or realization on the investments in whole or in part, and (iii) the balance of all the investments in the estate at the closing date of the
accounts;

(f) a statement of all the assets in the estate that are unrealized at the closing date of the
accounts;

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specifies. O. Reg. 55'12, s. 12 (5).

Hearing

(11.5) A hearing to grant judgment on an application to pass accounts, a request for

increased costs, or both, shall proceed on the hearing date specified in the notice of application. O. Reg. 55112, s. 12 (5).

(12) No objection shall be raised at a hearing on a passing of accounts that was not raised
in a notice of objection to accounts, unless the court orders otherwise. O. Reg. 484194, s. 12; O. Reg. 55112, s. 12 (6).
assess, or refer to an assessment officer, any bill of costs, account or charge of lawyers employed by the estate trustee. O. Reg. 484194, s. 12; O. Reg. 575107, s.2.

(13) At the hearing the court may

Form of Juclgment

(14) The judgment on a passing of accounts shall be in Form 74.50 or 74.51. O. Reg.
484194,s. 12.

RULE 75 ESTATES

CONTENTIOUS PROCEEDINGS

FORIVIAL PROOF OF TESTAMENTARY INSTRUMENT

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs. O. Reg. 484194, s. 12; O. Reg. 24100, s. 15. PROOF OF LOST OR DESTROYED WILL 75.02 The validity and contents of
an application,
a

will that has been lost or destroyed may be proved on

(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or (b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484194, s. 12.

OBJECTION TO ISSUING CERTTFICATE OF APPOINTMENT

Notice of Objection

75.03 (1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a fmancialinterest in the estate may give notice of an objection by filing with the registrar or the Estate Regisfar for Ontario a notice of objection (Form 75.1), signed by the person or the person's lawyer, stating the nature ofthe interest and of the objection. O. Reg. 484/94, s. 12; O. Reg. 24100, s. 16; O. Reg. 575107, s. l.

Expiry, Withdrawal and Removal af Notice af Oblection

G) A notice of objection expires

three years after it is filed and may be withdrawn by the

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person who hled it at any time before a hearing for directions under rule 75.06 in an appiicatlon for the certificate or may be rernoled by orde.r o.f the coL{rt. O. Reg. 484194, s. 12.

I\-otice to Applicant Where an application for a certificate of appointment of estate trustee has been made and a notice of objection is fiied, the registrar shall send notice of the filing (Forrn 75.2)by regular lettermail to the applicant or the applicant's lawyer at the mailing address shown in the application. O. R.eg. 484194, s. L2; O. Reg. 575107, s. l.

(f)

Notice to Obiector

An applicant who receives a notice under subrule (3) shall serve on the objector a notice to objector (Forrn 75.3) and file a copy of the notice and proof of service with the court. O. Reg. 484194, s. 12. (5) Where the objector does not serve and fiie a notice of appearance (Form 75.4) within 20 days after service of the notice to objector, the application shall proceed as if the notice of objection had not been filed. O. Reg. 484194, s. 12.
fuIotion

g)

does not move for directions within 30 days after service of the notice of appearance, the objector may move for directions" O. Reg. 484/94, s. 12.

for Directions (6) If the applicant

REVOCATION OF CERTIFICAIE OF APPOINTMENT

75.A4 On the application of any person appearing to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is
satisfied that,

(a) the certificate was issr-led in error or as a result of a fraud on the court;

(b) the appointment is no longer effective; or (c) the certificate should be revoked for any other reason. O. Reg. 484194, s. 12; O. Reg. 24100,s. 17.

RETURI{ OF CERTIFICATE
Motion

for Return of Certilicate 75.05 (1) The court may, on motion, order that a certificate of appointment be returned to
(a) the moving party seeks a determination of the validity of the testarnentary instrument for which the certificate was issued or of the entitlement of the estate trustee to the certificate; or

the court where,

(b) an application has been made under rule 75.04. O. Reg. 484194, s. 12. Notice

(e

The motion may be made without noti.ce unless the court orders otherwise. O. Reg.

484194,s. 12.

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Effict of Order
On service of the order to return the certificate of appointment, the estate trustee shall forthwith deposit the original certificate with the registrar, and the appointment has no further eftbct and shall not be acted on until,

G)

(a) the issues referred to in clause (1) (a) or the application referred to in clause (1) (b), as the case may be, have been determined by the court; or (b) the release of the certificate is ordered under subrule (6). O. Reg. 484/9 4, s. 12. Motion for Directions
an order under clause (1) (a) shall move for directions under rule 75.06 within 30 days after the making of the order. O. Reg. 484194, s. 12.

G) A party who obtains

The estate trustee may at any time move for directions under rule 75.06 for determination by the court of the matters referred to in clause (3) (a). O. Reg. 484194, s. 12.
Release of CertiJicate

$)

to in subrule (4) or (5) is not made, the court may, on motion of the estate trustee without notice, order the release to the estate trustee of the certificate of appointment. O. Reg. 484194, s. 12.

(O If a motion for directions referred

APPLICAIION OR MOTION FOR DIRECTIONS

75.06 (1) Any person who appears to have a financial interest in an estate may app$ for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. O. Reg. 484194, s. 12; O. Reg. 24100, s. 18 (1).
Service

An application for directions (Form 7 5.5) or motion for directions (Form 7 5.6) shall be served on all persons appearing to have a financial interest in the estate, or as the court directs, at least 10 days before the hearing of the application or motion. O. Reg. 484194, s. 12; O. Reg. 24100, s. 18 (2).

(e

Ofier

G)

On an application or motion for directions, the court may direct,

(a) the issues to be decided;

(b) who are parties, who is plaintiffand defendant and who is submitting rights to the couru (c) who shail be served with the order for directions, and the method and times of service; (d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);

(f) that an estate trustee be appointed during litigation, and file such securrty
directs:

as the court

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(f.1) that a mediation session be conducted under rule 75.1;

(g) such other procedures as are just. O. Reg. 484194, s. 12; O. Reg. 290199, s. l.

g)

An order giving directions shall be in Form 75.8 or 75.9. O. Reg. 484/94, s. 12.

PROCEDURE WHERE STAIEMEI{T OF CLAIM SERV-ED

Defendant: Statement af Defence, Statement of Defence ond Counterclaim or Submission Rights to Court

of

75.07 (1) Where a statement of claim is delivered as directed under subrule 75.06 (3), each defendant served may serve on each pafty and file with proof of service,
(a) a statement of defence or a staternent of defence and counterclaim; or (b) a statement of submission of rights to the court (Form 75.10). O. Reg. 484194, s.
12.

Plaintiff: Reply or Reply anct Defence to Counterclaim

(e
s.
12.

A phintiffmay deliver a reply or

reply and defence to counterclaim. O. Reg. 484194,

(f) Revoked: O. Pteg.740194, s. 5.

Effect of Fuilure to File Pleadings

G) A person who is served with a statement of claim and who does not file a statement of
defence, a statement of defence and counterclaim or a statement of submission of rights to the court is not a party to the proceeding and his or her consent to any settlement, agreement or consent jud-ement is not required. O. Reg. 484194, s. 12.

SUBMISSION OF RIGHTS TO COURT

75.07.t Where a person files a statement of submission of rights to the court in response
to service of a statement of claim or on a motion or application for directions,
(a) the person is not a party to the proceeding and is entitled only to service by the plaintiff of written notice of the time and place of the trial and a copy of the judgment disposing of the matter;

(b) the person is not entitled to costs in the proceeding and is not liable for costs. except indirectly to the extent that costs are ordered to be paid out of the estate; and

(c) a judgment on consent following sefflement shall not be given without, (i) the written consent of the person, or (ii) an affidavit of a lawyer of record in the proceeding attesting that
a notice of (Form 75.11), appended as an exhibit to the affidavit, has been settlement personally served on the person and no rejection of settlement (Form 7 5 .I2) has been filed with the court within 10 days after service of the notice. O. Reg. 74A194, s. 6; O. Reg. 575107, s.32.

CLAIMS AGAII{ST AN ESTATE

Notice of Contestation of Claim

:.;'s

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75.08 (1) A notice of contestation of a claim under section 44 or 45 of the Estates Act shall be in Form 7 5 .13. O. Reg. 484194, s. 12.
Clairns

Form 75.14. O. Ree. 484/94. s. 12.

Service The claimant shail serve the claim on the estate trustee and file the claim and the notice of contestation, with proof of service, within 30 days after service of the notice of contestation on the claimant. O. Reg. 484194, s. 12.

A claim made against an estate under section 44 or 45 of the Estates lcl shall be in

Q)

Date of Trial

(4) When the claim and notice of contestation

trial. O. Reg. 484/94, s. 12. Manner of Trial

are filed, the registrar shall fix a date for

The trial shall proceed in a summary manner unless the judge considers it appropriate to give directions as to the issues, parties and pleadings. O. Reg. 484/94, s. 12.

(!)

LAWYER OF RECORD
75.09 (l) The lawyer who takes'any ofthe following steps on a party's behalf is the party's lawyer of record:
1. Filing a notice

of objection under rule ?5.03.

2. Moving for return of a certificate under rule 75.05.

3. Moving for directions under rule 75.06. O. Reg. 484194, s. L2; O. Reg. 575107, s. 33.

Rule 15.02 applies, with necessary modifications, as if the notice or motion were an originatingprocess. O. Reg. 484194, s. 12.

(2

RULE 75.1 MANDATORY MEDIATION ESTATES, TRUSTS AND SUBSTITUTE DECISIONS

75.1.01 Revoked: O. Reg. 132104, s. 13.
SCOPE

75.1.02

(l)

This Rule applies to proceedings,

(a) that are conlmenced in,

(i) the City of Toronto on or after September l,1999,

(ii) The Regional Municipah'ty of Ottar,va-Carleton on or after September 1, 1999 but before January 1,,200I, (iii) the City of Ottawa on or after January 1, 2001, or

(i9 the County of Essex on or after January

1, 2005; and

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FORM 75.1
Courts of Justice Act

NOTICE OF OBJECTION ONTANO SUPERIOR COURT OF' JUSTICE

In the Estate ofthe deceased person described below:

DETAILS ABOUT THE DECEASED PERSON

And

the deceasedwas known

other name

state below the

sufname

Fint siven name

IN THE MATTER OF an application for

certificate of appointnent of estate trustee

NOTICE OF OBJECTION

l,
The nature

(insert name)

without notice to me

because

(iwert name of applicant) , object to the issuing of a certificate of appointrnent ofestate trustee to (indicate reason, such as lack oftestamentary capacity, undue in/luence or unJitness to act as estate trustee).

ofmy interest in the estate

is:

(state relationship to the deceased andwhether a named beneficiary under the

will, or other basisfor

financial interest).

DATE

(Name, address and telephone number of objector or lawyer

for

objector)

RCP-E 75.1 (July 1,2007)

Page

Case Name:

Currie v. Halton (Region) Police Services Board

Between

Oriena Currie, plaintiff (appellant), and Halton Regional Police Services Board, Owen Gray, Kim Duncan,
and Michael Jaeger, defendants (respondent) [2003] O.J. No. 4516
233 D.L.R. (4tb) 6s7

t79 0.4.C.67
127 A.C.W.S. (3d) 573

2003 CanLII 7815 Docket No. C38818

Ontario Court of Appeal Toronto, Ontario

Weiler, Abella and Armstrong JJ.A.

Heard: April 14, 2003. Judgnenl November 27, 2003. (34 paras.)

On appeal from the order of Justice E. R. Kruzick of the Superior Court of Justice dated August 20,

2002. Counsel:
Peter K. McWilliams, Q.C., for the appellant. Graydon Sheppard, for the respondent Michael Jaeger.

Page2

The judgment

of the Court was delivered by

" ARMSTRONG J.A.:-- The appellant was arrested on July 5,200Ion a charge of fraud ou., $5,000. She was in custody until released on bail on July 9,2001. On December 31, 2001, she commenced this action against the respondent and others for damages for false arrest, false imprisonment, and abuse of process. On a motion by the respondent before Justice E. R. Kruzick of the Superior Court of Justice the action was dismissed. The appellant appeals from the order

dismissing her action. Background Tbe criminal charge, which is central to this action, relates allegedly to an unsuccessful business deal which the appeilant had entered into with one Petre Caragioiu. The respondent was the lawyer for Caragioiu and had acted against the appellant in at least two other civil actions.

3 4

The appellant, as part of a plea bargain, entered a plea of guilty to charges other than the fraud

charge, which was stayed at the request of the Crown attorney.

The appellant commenced this action against the Halton Regional Police Services Board, two individual police officers and the respondent. The statement of claim contains the following allegation against the respondent: "[The respondent] repeatedly and unlawfully urged and requested the defendant Owen Gray [a detective with the Halton Regional Police Services Board] to arrest the

fappellant]."

The respondent moved inter alia for the following relief:

a. b. c. d. e. 6

An Order for security for costs as against the plaintiff in the amount of $25,000.00 or such other amount as this Court may deem necessary; Alternatively, an Order striking out the statement of claim as against the defendant as frivolous, vexatious and an abuse of process of the Court; Alternativelv. an Order dismissins the action asainst the defendant as failing to disclose a reasonabl. .u]ur. of action;"and granting leave to introduce afhdavit evidence, if necessary; Alternatively, an Order for summary judgment dismissing the plaintiffs action against the defendant; An Order declaring the plaintiff to be a vexatious litigant within the meaning of s. i40 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as
amended.

On the proceedings before the motions judge, each of the parties filed affidavit evidence. The

Page

transcript of some of the evidence of the appellant's bail proceedings was also before the court. The motions judge accepted the evidence of Detective Gray of the Halton Regional Police at the bail hearing that it was he who instructed Constable Duncan to affest the appellant and that the urging of the respondent that the appellant be arrested had no effect on his decision to do

so.

In dismissing the action, the motions judge stated:

Counsel for Mr. Jaeger referred me to Mishra v. Ottawa, U9971O.J. No. 4352 a decision of this court where Sedgwick J. enumerated some seven characteristics of what constitutes a vexatious proceeding (relying upon and quoting Lang Michener and Fabian (1987), 59 O.R. (2d) 353 (H.C.J.).

Essentially I came to the conclusion that the plaintiffs action, on the material before me has no chance of success and fits under the rubric of frule] 21 .01(3Xd) as being an action that is frivolous, vexatious and generally an abuse of the process ofthe court.
The Appeal

Counsel for the appellant submits that the motions judge had, in effect, dismissed the action on the basis that the statement of claim disclosed no reasonable cause of action pursuant to rule 21.01(1Xb) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for the appellant further submitted that the motions judge erred in relying upon the affidavit evidence. Rule 21.01 (2)(b) makes it clear that no evidence is admissible on a motion brought pursuant to rule 21.01(1Xb).

It is perhaps not entirely clear from the above language of the motions judge whether he based his decision, in part, on a failure to plead a reasonable cause of action pursuant to rule 21.01(1Xb). If he did, I agree that he was not entitled to consider any extrinsic evidence.
I think the better view of the motions judge's decision is that it was based entirely upon the application of rule 21.01(3Xd) that the action was frivolous, vexatious and an abuse of the process of the court. Under that ru1e, extrinsic evidence is admissible.
In reaching his decision, one of the factors the motions judge considered was whether it is obvious that the action cannot succeed. In this respect, he relied upon Mishra, supra at paragraph 39 where Sedewick J. stated: In Lang Michener et al. and Fabian et al., (1987) 59 O.R. (2d) 353, Henry J., summarized the characteristics of vexatious proceedings in the following
passage:

10

11

Paoe

(a)
(b)

the bringing of orre or rrore actions to determine an issue which has

(c)

(d)

already been determined by a court of competent jurisdiction constitutes a vexatious proceedings; where it is obvious tftat an action cannot succeecl, or if the action would lead to no possibtre good, or if no reasonable person can reasonably e,xpect to obtain relief the action is vexatious; vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; it is a general characteristic ofvexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e)

(D

(e)

in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; the respondent's conduct in persistently taking un-successful appeals fromjudicial decisions can be considered vexatious conduct oflegal
proceedings. (358-9)

The motions judge did not expressly relate the circumstances of this case to the factors set out by Henry J. in Lang Michener. I take from his endorsement that he accepted the evidence of Detective Gray as determinative of the main factual issue, i.e. that the conduct of the respondent had nothing to do with the arrest and incarceration of the appellant. It is also apparent that he relied upon factor (b) refened to by Henry J. in Lang Michener.

12

I turn to a consideration of whether there is a basis on the record before the court upon which the motions judge could conclude that the action is frivolous, vexatious or an abuse of process. A
review of the case law under rule 21.01(3)(d) does not provide precise definitions of the terms frivolous, vexatious or abuse of process. The majority of the cases cited by the editors of Ontario Annual Practice and Ontario Civil Practice either refer to abuse of process alone or to all three terms together.I
Black's Law Dictionary defines "frivolous" as: "Lacking a legal basis or legaX merit; not serious; not reasonably purposeful".2

13

14

15

In Foy v. Foy 0'lo. 2) 0979),26 O.R. (2d) 220 at226, Hor,viand, C.J.O. considered the

Page 6

merit lrnay quafi:fy for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.

I am mindful that when the court invokes its authority under rule 2 i .01(3)(d) or pursuant to ifs inherent jurisdiction to dismiss or stay an action, it does so only in the clearest of cases. See Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen. Div.) at paragraph 21.
In my view, the motions judge did not err in his application of rule 21.01(3Xd) on the record that was before him.

18 lg

20

rhe stateme".

"t

";;'."#;::::::::

* *

requested the defendant Owen Gray to arrest the plaintiff Currie. The defendant Michael Jaeger had a conflict of interest in that he was the solicitor of record in three civil actions involving the plaintiff.

ff:,;:::ffi;;;: "-

The defendant Michael Jaeger had oblique motives in requesting the defendant Owen Gray to have the plaintiff arrested. Furthermore, the conduct of the defendants as aforesaid, was malicious, high handed and deliberate and calculated to cause the plaintiff damage. Accordingly, an award of punitive or exemplary damage is warranted.

The evidence relevant to the issues of false affest, false imprisonment and abuse of process before the motions judge came from the appellant, the respondent and Detective Gray.

21

22

The appellant filed an affidavit in which she stated that the respondent "initiated pressure on Detective Gray to lay criminal charges against me." She also swore that the respondent sent a false document to Detective Gray but did not specify the document or its content.

23

The appellant also testified that during the course of a recess in a judgment debtor examination that the respondent said, "after I put you behind bars lady, you'll have lots of time to study law." On the record before us there does not appear to be a denial by the respondent of this
statement.

24

The respondent testified by way of affidavit that he had not arrested the appellant and referred to the evidence of Detective Gray at the appellant's bail hearing.

25 26

Neither the appellant nor the respondent were cross-examined on their affidavits.

Both the appellant and the respondent filed portions of the transcript of the evidence of Detective Gray at the bail hearing. Counsel for the appellant before the motions judge and in this appeal, Mr. McWilliams, was also counsel for the appellant on the bail hearing. He cross-examined

D4dA r46e

1 i

Detective Gray on the circumstances of the arrest of his client and the communications which had taken place between Detective Gray and the respondent.

27

The cross-examination of Detective Gray revealed that the police carried out their own investigation. However, he conceded that he was contacted by the respondent and urged by him to arrest the appellant. The following excerpt from the cross-examination by Mr. McWilliams is

informative:

a A. a. A. a. A. a. A.
a.

And have you discussed the case with him fthe respondent], any of these cases? I don't discuss it with him. I iust listen to what he has to tell me. Oh you listen? That's correct. So you have met him?

Yes,I have.
And when did you last speak to him? I'd have to make - if I may check my notes for a quick second. I think I've made I do my best to make notations every time. Well, I'm sure. What I want to know is whether you spoke to him prior to the arrest of Oriena Currie last Thursday? I put it to you that he approached you and urged you to have her arrested and that he's behind her arrest, even though he's the solicitor for these people, the Gosses and Caragioiu, who are invoived in civil litigation against her. Actually I can answer your question. You've got three in there Yes. The first part of your question is yes he has asked me to arrest her and this started way back I think prior to Peter Caragioiu getting involved because he represents the Williamsons. Oh you know that too? I'm very familiar with that. Now, that's another lawsuit where he is the solicitor for the plaintiff suing Oriena Currie and Sheri Duff, who was their own daughter ... That's right. ... and the various companies. So you know he's behind that lawsuit too?

A.

a.
A.

a
A.

a.
A.

a.
A.

a.

Yes,I do. And did it not concern you that he might have a private axe to wield, that he might have a conflict of interest and he might be prepared to go to any lengths to have my client arrested in order to pursue his designs in these various lawsuits?
The merits of this investigation are on my investigation and my investigation only and the decisions made are based on my findings through my investigation. Were you not at all concerned that you or the police were being used for the

A.

A.

private purposes of this solicitor from Hamilton ... No.

t
Page 8

F F

a. A. a. A. a' A. a A. a. A. a A. a
A.

... to pursue these various vendettas against my client? Not in the least. Not in the least.

Not in the least. Not at all. Did you not even acknowledge that there was a conflict of interest on his part? You'llhave to explain that to me because he was always coming at me from the civil side. I mean, if he mentions anything to me he's telling me from his civil standpoint which is basicaily no use to me. Oh. Well, it was obvious that he wanted to pursue these civil actions, the one by the Williamsons against Oriena Currie?
That's correct. And he wanted to pursue the civil action by Caragioiu against her? Well, he is pursuing all those. Yes. Yes. And he wanted additional assistance to the point of having her arrested so as to make life difficult for her to defend herself in these civil actions? That's correct. And you saw no conflict of interest in all that?

a. A.

Well

no, because I didn't arrest her on his terms. I arrested Mrs. Currie and Charlie and Sheri on my terms. It has nothing to do with Michael Jaeger or his civil action

whatsoever.

28 Both the appellant and the respondent relied upon the above portion of the cross-examination by Mr. McWilliams. Not surprisingly, their submissions as to the legal conclusion to be drawn from Detective Gray's evidence were markedly different. 29 30
Simpliciter, the appellant argued that the conduct of the respondent attracted liability for false arrest and false imprisonment. The respondent, on the other hand, submitted that his conduct did not attract liability for the torts of false arrest and false imprisonment.
Counsel for the appellant submitted that in an action for false arrest, the plaintiff need not prove the defendant actually made the arrest. It is sufficient that the defendant simply use his power or influence in urging the police to do so. He relied upon the following authorities: Vanderhaug v. Libin (1954), 13 W.W.R. 383 (Alta. C.A.); Pike v. Waldrum,ll952l1 Lloyd's Rep. 431 (Q.B.D.); Dendekker v. F.W. Woolworth Co. Limited,U975l3 W.W.R. 429 (Alta. S.C.); Mann v. Rasmussen ,11928) 3 D,L.R. 319 (Alta. S.C. (A.D.)); and Hinde v. Skibinski (1994),21 C.C.L.T. (2d) 3I4 (Ont. Gen. Div.). None of these authorities is binding upon the court. All of them are distinguishable from the case at bar. The one Ontario case, Hinde, is a malicious prosecution case which left open the question whether the plaintiff could succeed where the defendant had not

Page 9

actually laid a criminal charge.

It is unnecessary, in the circumstances of this case, to decide whether a person who does no more than urges the police to arrest another can ever be liable for false arrest or false imprisonment. In the case at bar, the detective testified at the bail hearing that the respondent had called him mofe
than once to urge him to arrest the appellant. However, the detective conducted his own investigation, made his own decision to arrest the plaintiff, and inskucted the constable to execute the arrest. Itt *y view, in these circumstances, the motions judge had before him sufficient evidence upon which to conclude that the action had no chance of success.

31

While I might have been inclined to dispose of this matter as a summary judgment motion pursuant to Rule 20 on the basis that no genuine issue for trial was raised, the motions judge chose not to do so. However, his conclusion does appear to be tantamount to a finding that there was no genuine issue for trial. Nevertheless, counsel before us did not argue the applicability of Rule 20.

32

33

Counsel for the appellant also raised the issue of the respondent's failure to comply with rule 2.02(4) of the Rules of Professional Conduct of the Law Society of Upper Canada which provides:

A lawyer shall not advise, threaten, or bring a criminal or quasi-criminal prosecution in order to secure a civil advantage for the client.
While the respondent's conduct as a member of the Law Society, may deserve review by his professional body that issue is not before us. I cannot discem, on this record, that such conduct establishes a basis for civil liabilitv.
Disposition

34

In the result, I would dismiss the appeal with costs to the respondent on a partial indemnity basis in the amount of $6,000 including interest and Goods and Services Tax. ARMSTRONG J.A. WEILER J.A. -- I agree. ABELLA J.A. -- I agree.
cp
IeI

nc

qw lqlrme/qlkj g

W.A.D. Millar & J.G. Cowan, Ontario Annual Practice 2003 2004 (Aurora: Canada Law Book, 2003) at RULE-222 to RULE-224; G.D. Watson & M. McGowan, Ontario Civil Practice20A4 (Toronto: Thomson Canada,2003) at535 to 538.
1 J.J. Carthy,

2 B.A. Garner, ed., Black's Law Dictionary,Tthed., (St. Paul: West Publishing, 1999) at 677.

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