SUPREME COURT OF Nova Scotia
Citation: Gray Estate v. Gray, 2016 NSSC 359
Date: 20161116
Docket: HFX No. 447609
Registry: Halifax
Between:
Douglas Garrison, as the Executor of The Estate of Lila Gray
Plaintiff
v.
Aerial Scott Gray
Defendant
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Judge: |
The Honourable Justice Patrick J. Murray |
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Heard: |
August 4, 2016, in Halifax, Nova Scotia |
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Final Written Submissions: |
September 9, 2016 |
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Written Decision: |
November 16, 2016 |
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Counsel: |
Judith A. Schoen, for Douglas Garrison Wayne A. Bacchus, for Aerial Scott Gray |
By the Court:
[1] The Plaintiff, Mr. Garrison, is the Executor of the Estate of Lila Gray. I shall refer to the Plaintiff at times as “the Estate”. The Estate seeks three remedies on this motion.
[2] First, it asks the Court to grant an interlocutory injunction which would preserve the two real properties and ensure they will not be wasted or sold until the matter can be decided on its merits.
[3] Second, the Estate asks the Court to grant an accounting of the estate, in light of the allegations of financial impropriety against the Defendant that are made by the Plaintiff.
[4] Third, the Plaintiff seeks to amend its’ Statement of Claim and has provided in draft, the Amended Statement of Claim.
Related Issues
[5] In addition to these issues, there are several related or “sub-issues” that have arisen on this motion and which must be decided.
[6] These are as follows:
i) Whether the paragraphs objected to in the affidavit of Mr. Garrison, filed in support of the motions, should be struck in whole or in part?
ii) Whether my ruling on the affidavit or the exhibits is binding upon the judge at trial, this being an interlocutory motion?
iii) Whether Mr. Gray's daughter, Ann Sampson, should be added as a Defendant and whether by not adding her the Plaintiff’s motion for injunctive relief should be denied?
[7] This was a motion set down in Chambers at an appointed time. Decisions on motions are often given quickly. Such is not the case here. Rulings are first required on the admissibility of the affidavit filed in support of the motion.
[8] As has been previously stated, improper content in affidavits has the effect of interfering with Rule 1.01. In addition this motion has been “procedurally mechanical”, as stated by Justice Moir during the original chambers hearing on the ex-parte motion.
[9] In consequence my decision on the related issues will be summary in nature.
[10] Mr. Gray filed his own motion, in which he seeks: 1) that Mr. Garrison’s affidavit be struck; and 2) that the motion of the Plaintiff be denied. I shall consider the motions together. The Defendant filed an affidavit in support of his position on these motions.
i) Objections - Striking all or part of the Mr. Garrison’s Affidavit
[11] The Defendant, Aerial Scott Gray, in his brief, seeks to have portions of the affidavit of Mr. Garrison struck in whole or in part. The reasons are numerous and include that the paragraphs are: 1) hearsay and not permitted under the motion; 2) not within the personal knowledge of Mr. Garrison; 3) irrelevant; 4) not reliable; 5) containing innuendo; or 6) not in compliance with the Rules.
[12] The Plaintiff submits that the Affidavit is in proper form and that on interlocutory motions hearsay evidence is admissible as well as being necessary and reliable. An example is Exhibit “C” of Mr. Garrison’s affidavit, being the unsworn affidavit of Lila Gray. Ms. Gray is now deceased and the Estate says hearsay is necessary. In addition the Plaintiff says Ms. Gary’s evidence is reliable on the basis of R v. Khelawon, 2006 SCC 57.
[13] The Plaintiff argues that Mr. Garrison has corroborated the information in the unsworn affidavit in that they worked on the content of it, together. The Plaintiff anticipates there will be further corroboration made through “an independent witness at trial”.
[14] This is a motion for an interlocutory injunction. There are a number of Rules that are relevant. They include Rules 22.05, 23.03, 39.02(2), and 41.02(6).
[15] The leading case on the admissibility of affidavits continues to be Waverley (Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs), 1993 CanLII 3403 (NSSC). Accordingly affidavits should be confined to facts within the personal knowledge of the person swearing the affidavit and where permitted, to be based on information and belief. The person swearing or affirming must state the source of and the grounds for the belief.
[16] Rule 22.15 deals with rules of evidence on motions. It sets out those instances where hearsay evidence is admissible. One of those is where the matter involves a procedural right. An interlocutory injunction is a step in a proceeding. A “proceeding” is defined in Rule 94.
[17] In the present motion the Plaintiff is seeking to preserve the properties in question, requests an accounting, and requests amendments to the Notice of Action and Statement of Claim. These amendments are primarily as a result of the death of Lila Gray.
[18] While seeking an interlocutory injunction is not strictly speaking, a procedural right, it is a procedural step in the litigation process. The three fold test for an interlocutory injunction involves some consideration of the merits, but it is limited.
[19] It does appear that the current Rules, as well as the former Rules, do contemplate a distinction between affidavits on motions and the use of an affidavit at a trial. In the latter case, the affidavit shall contain only such facts as the declarant is able of his/her own knowledge to prove.
[20] Rule 39.04 deals with the striking of part or all of an affidavit. An affidavit must not contain a plea or submission. An affidavit must not offer an opinion or contain an irrelevant statement. This Rule allows a judge to strike inadmissible evidence or evidence that is not appropriate.
[21] Rule 39.02(2) states:
39.02 (2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information.
[22] An Affidavit that includes hearsay permitted under Rule 5.13, Rule 22.15, a rule of evidence or legislation must identify the source of the information and swear to or affirm the witness’s belief in the truth of the information.
[23] I have previously referred to Rule 22.15. Rule 5.13 deals with a motion for directions on an application. Under that Rule a judge may order a party to produce an affiant to be cross examined. It may limit the subjects for cross examination and as well permit a witness to testify instead of swearing or affirming an affidavit. It also permits a judge to ascertain whether there would be evidentiary issues as well as set dates for the filing of affidavits by the parties. Otherwise, Rule 5.13 does not permit hearsay unless permitted by the judge who is able to give directions or make any order needed to organize the application.
[24] This is not an Application under Rule 5.13.
[25] I have given consideration to the submissions of the Plaintiff and the Defendant with respect to Mr. Garrison’s affidavit objected to by the Defendant. I shall now provide my ruling with respect to Mr. Garrison’s affidavit sworn to on July 27, 2016.
[26] In paragraph 2 Mr. Garrison states he has personal knowledge of the evidence sworn to except where otherwise stated to be based on information and belief. I note the direction in Waverley, that information as to the source must be sufficient to permit the court to conclude that the information comes from a sound source and preferably the original source. For example, it is insufficient to simply say that “I am advised”.
[27] Paragraph 5 - This is an important paragraph in my view as it contains Exhibit “C”, described as a true copy of an affidavit prepared by Mr. Garrison and the late Ms. Gray.
[28] In my view, there is some merit to the Defendant’s objection to this paragraph. The first sentence mostly amounts to a plea or submission. It is appropriate that portions of this sentence be struck so that it reads, “I understood that the Defendant had not filed a Defence in relation to the matter”.
[29] Similarly, with respect to the last sentence in paragraph 5, starting with, “Lila and I worked together”, should remain up to and including “attached to and marked Exhibit ‘C’ is a true copy of the affidavit that we prepared”. However, the phrase, “and discussed together with corresponding amendments”, is deleted.
[30] Exhibit “C” - With respect to Exhibit “C” itself, I am going to permit Exhibit “C” to be admitted, simply as a document which Mr. Garrison says he prepared with Ms. Gray. That is a fact within his personal knowledge. The fact that he is an interested party as her former Attorney and now Executor would go to the weight to be attributed to the document. Exhibit “C” is not sworn and therefore is not properly admissible as affidavit evidence, given under oath.
[31] Email attached to Exhibit “C” - With respect to the email attached to Exhibit “C” dated April 17, 2016 and sent by Mr. Garrison, I am not going to admit. Simply put, it is not clear from my review who authored this email. It may have been Ms. Gray or it may have been Mr. Garrison, or a combination of them.
[32] Given its potential to be self-serving, I will decline to admit the email for the purpose of this motion. At trial, as with the unsigned affidavit, it will be for the trial judge to decide on its admission and/or the weight to be given to it at that time. I shall deal further with this in my discussion on this issue later in my decision. (See paragraphs 48 – 54)
[33] As earlier stated, I am going to admit the unsigned affidavit for the purpose of this motion. That said, I will address whether it is necessary to rely on it in order to reach a decision on this motion. (See paragraph 118)
[34] Paragraph 7 - With respect to this paragraph, I am going to admit it. While it appears to contain an opinion of Mr. Garrison, it is based upon the calculations he made and it is part of the allegations made by the Plaintiff. He does identify (in Exhibit “C”), the source for his statement and provides a summary of those withdrawals for which he claims are unaccounted.
[35] Ultimately it will be up to the judge at trial to determine the weight and accuracy of this statement. He provides both the source and confirmation as to what is contained therein even if it is his own.
[36] Paragraph 8 - I am of the view that this paragraph is admissible and that the information contained therein is not hearsay with the following exception. The second last sentence should be deleted, namely, “I am seeking to amend the application.”, because it is in the nature of a plea. The last sentence shall remain as it is consistent with the relief being sought in the Notice of Motion.
[37] Paragraph 10 - It is my view that the words, “unbeknownst to her” should be deleted, as it is a situation where Mr. Garrison is speaking for Ms. Gray and it is also in the nature of argument.
[38] Further in paragraph 10, Mr. Garrison states he is seeking an injunction order for both of the properties, including possession of the Sambro property. Neither the Notice of Motion or the order provided seek possession of the properties as a remedy. This wording is in the nature of a plea or submission. It should have been contained in the relief sought.
[39] The order refers to permission to amend, the requirement to account, to the Defendant being enjoined and ordered to refrain from transferring or encumbering the properties, and to refrain from committing any waste to the properties. I will refer to this at the conclusion of my decision.
[40] At this point my ruling is that a portion of the last sentence should be deleted so that the sentence reads, “I am seeking an injunction order for both properties”.
[41] Paragraph 11 - I am going to allow it. Whether “guesstimate” or estimate is used I have no difficulty. Clearly the intent being conveyed by the affiant is that he is not 100% sure. For example, he refers to the amount as “approximate”. This is something the Court can consider and assign appropriate weight.
[42] Paragraph 12 - In the first sentence, wording should be struck so that it reads, “In October of 2014, Lila requested that I made arrangements to have the locks changed on her home.” The next sentence beginning with, “She felt unsafe…” should be deleted in its entirety. The last two sentences beginning with “Prior to the locks being changed…”, and “After the locks were changed…” shall remain and form part of paragraph 12.
[43] Paragraphs 13 and 14 and 15 are objected to on the basis that they are irrelevant to this matter. With respect to paragraph 13, while it is ancillary to the issue on the motions, I am satisfied it provides context for determining whether an interlocutory injunction is warranted.
[44] While paragraph 13 does not state the source or belief in the source, paragraph 2 would suggest that the information is within Mr. Garrison’s personal knowledge. I make the same finding with respect to paragraph 14 and will admit same.
[45] With respect to paragraph 15, it is in the nature of a plea for the relief sought. While providing a basis for the conduct alleged, the gist of this paragraph states that Mr. Garrison is “concerned”. I am going to allow paragraph 15 to remain subject to the deletion of the words, “due to the Defendant’s conduct” as those words are in the nature of a submission.
[46] In summary on this issue, I have attached as Appendix “A” the revised paragraphs 5, 7, 8, 10, 11, 12, 13, 14, and 15 of Mr. Garrison’s affidavit, as permitted by my ruling. I am satisfied the parts struck could be separated from the rest without the necessity of striking the entire affidavit, in accordance with Rule 34.02(3).
[47] In respect of my ruling on the affidavit and in particular paragraphs 10 and 12, I am not satisfied that the affidavit contains sufficient information to allow me to conclude that this evidence was given in circumstances that were reliable. Mr. Garrison was not Ms. Gray’s attorney at the time referred to in these paragraphs. Also the information comes very close to the ultimate issue to be determined in this action.
Is the Interlocutory Ruling on evidence binding at Trial?
[48] Just as the decision on the interim and interlocutory injunctions are not binding on the trial judge, I have found that neither are the evidentiary rulings on the affidavits in this motion.
[49] Rule 39.02 contemplates that hearsay evidence is admissible on an Application under Rule 5 or a motion under Rule 22.15. In Waverley, at page 6 in reference to the former Civil Procedure Rule 38.02, the court clearly imposed a different standard on an affidavit to be presented for trial.
[50] Rule 29 states that pre-trial motions shall be made to the presiding judge, who will give directions as to procedure and the evidence to be led at trial. In the absence of such directions, the Rule states that evidence in support of the motion may be led at the trial.
[51] However, based on the submissions made on both sides I am satisfied that the ultimate determination of evidentiary issues at trial is for the presiding judge at that time”.
[52] This is consistent with the decision in Weldon v. Kavanagh (N.S.C.A.), [1989] N.S.J. No. 397. In Weldon, the court drew a distinction between a statement within the personal knowledge of the affiant and a statement based on the affiant’s belief in the source, with the source being provided. The latter would be admitted in interlocutory proceedings.
[53] Further, Rule 41.06 requires an undertaking to indemnify another party in the event “a judge who finally determines the claim is satisfied that the injunction is not justified in light of the findings on final determination.”
[54] While the ruling of a motions judge may be may be persuasive, it is the presiding judge who will have before them, the entire evidence in relation to the matter. This will enable them to determine for example, whether an exception to the hearsay rule exists or consider such things as necessity and reliability under the principled approach.
ii) Adding Ms. Sampson as Defendant
[55] At the ex-parte hearing Plaintiff's counsel advised Justice Moir that since commencing the action the Plaintiff learned the properties had been conveyed by the Defendant to himself and his daughter. According to Mr. Gray’s affidavit, this occurred on December 17, 2015 but the Deeds were not registered until March 18, 2016.
[56] Justice Moir stated he wanted the documents to reflect Ms. Sampson as a party, but his statement was prefaced by the words, "if you are going to add her as a party."
[57] Ms. Schoen has provided, as part of her post hearing submissions a letter stating that while it was their original intention to name Ms. Sampson, they have decided, upon further reflection, that it is not necessary to do so. The reasons given were contained in Ms. Schoen’s submission of August 24, 2016 as follows:
i) The Defendant conveyed the property after he was aware of the action of the Plaintiff.
ii) The Defendant cannot circumvent the claim against him by simply conveying the properties in question.
iii) The Plaintiff otherwise has no claim against the Defendant’s daughter nor would she have a defence to the Notice of Action.
[58] For these reasons, Ms. Schoen submits that she should remain a non-party to the current proceedings.
[59] Civil Procedure Rule 35 deals with joinder of parties in an action or an application.
[60] Rule 35.08(2) contemplates that one hearing and not a series of hearing should be held to determine the issues of all persons with an interest in the proceedings.
[61] The Rules further speak of the Plaintiff’s cause of action occurring from a single transaction or occurrence or a series of transactions or occurrences. (Rule 35.02(3))
[62] Basically, it is Rules 35.02 and 35.03 that determine whether a person should be added as a party. If there are two plaintiffs they must both agree that a defendant should be added. Ms. Schoen has advised the Plaintiff does not agree that Ms. Sampson should be a Defendant.
[63] I have reviewed both of these Rules and in my view, it is not entirely clear they would mandate that Ms. Sampson be added as a party.
[64] The transaction in contest and being challenged by the Plaintiff is the Deed from Ms. Gray, while she was living, to her son Scott Gray. Whether that Deed was valid will determine whether the Deed from Scott Gray to his daughter is valid. It was Mr. Gray who initiated this Deed some fifteen months after the Deed to him from his mother.
[65] In these circumstances there is arguably no cause of action by the Plaintiff against Ms. Sampson except in her capacity as a joint tenant owner of the property. He is not alleging she did anything wrong.
[66] The Rules do contemplate situations where the ultimate judgement will encumber or bind someone who is not a party. (Rule 35.03(4)(c)). The Rules, as a principle of pleading, also aim to avoid surprise. Rule 38.02 specifically states that a pleading will contain sufficient information to allow the other party to know the case it has to meet.
[67] The Defendant, despite having conveyed the property to he and his daughter three months earlier, failed to mention this fact in his defence to the action that he filed on March 21, 2016.
[68] Further in making a counterclaim, the Defendant did not mention the joint conveyance. The Plaintiff states it was not until after the motion was made that they learned of the conveyance to Ms. Sampson.
[69] In my view, the Defendant should not, in these circumstances, be able to benefit from something he did, both after the fact and without informing the Plaintiff.
[70] I find there is little merit in the Defendant’s argument that the failure of the Plaintiff to add his daughter should result in this motion being dismissed. Under Rule 35.06 the failure to name a “right person” does not automatically defeat a proceeding. I find however, that adding Ms. Sampson as a Defendant to the main action appears necessary, in light of Rule 35.03(4)(c). Under Rule 35.08, a judge may join a person as a party. Without a motion to that effect, I decline to do so.
[71] I turn now to address the issues outlined in paragraphs 2, 3, and 1. I will deal first with the accounting and amendment issues and leave for last the main issue of whether to grant the interlocutory injunction sought by the Plaintiff.
Issue # 2- Should an Accounting be Ordered?
[72] This issue is one that is very common in matters involving probate. Under the legislation an Executor or Personal Representative must file an inventory of the estate as of the time of death. Further, prior to the distribution of the proceeds the Executor must submit an accounting of the estate to be approved by the Registrar.
[73] In probate matters, an accounting is generally required and approved. This would by extension, extend to include the holder of a Power of Attorney, who is required to account to the persons whose estate is being managed. Fiduciary obligations exist throughout these relationships, and then upon death to the Executor, as mentioned.
[74] The Estate has in its submission set out the particulars of Rule 66.02(1) which allows a motion for an accounting, by a person making a claim that “necessarily involves the taking of accounts”. Generally the Rule requires “a detailed statement of receipts and disbursements” as well as an “accurate statement of assets and liabilities”.
[75] The Plaintiff submits an accounting is clearly required of the Defendant as only he would have possession of the information necessary to complete same. It is preferable that an order issue, submits the Plaintiff.
[76] The Defendant is not opposed per se to being required to account, but qualifies his position by stating that he will provide an accounting of the use made of Ms. Gray’s money “to the best of his knowledge and ability”. He says there were many transactions made for cash on the direct instructions of Ms. Gray.
[77] The Defendant has therefore consented, albeit conditionally to an order for an accounting.
[78] In the circumstances the Court will order that Mr. Gray provide a full accounting of his dealings with the affairs of his mother, Lila Gray. In these circumstances, nothing less will suffice. Mr. Gray will provide what receipts he has available. This is all that can be done. He will however, be required to exercise all due diligence in determining the nature of those expenses for which no receipts are available. He will provide a detailed affidavit to the Court in respect of those expenses. The Court will at the appropriate time review and assess the information provided by Mr. Gray, determine whether it is acceptable, and assess what issues, if any, flow from the accounting provided by him.
Issue # 3 - Should the Amendments sought be Granted?
[79] In the ex-parte order granted by Justice Moir he stated in the third “whereas” clause that “permission to amend the pleadings to the extent necessary due to the death of Lila Gray, subsequent to the Notice of Action been filed has been authorized by the Court”.
[80] The Defendant states, that the Defendant’s consent should have been sought, before any motion was filed.
[81] The Defendant sets out the proper test for pleadings to be amended, which is that the amendments should be granted unless it can be shown: 1) that the party seeking the amendment is acting in bad faith; and 2) by allowing the amendment the opposing party would suffer serious prejudice that could not be compensated in costs.
[82] The Defendant states that the amendment alleging “undue influence” is prejudicial and without foundation. Despite this the Defendant consents to the proposed amendments because the Defendant can be compensated in costs, and seeks costs for these amendments.
[83] The Plaintiff provided the Amended Statement of Claim as proposed. It was attached to their brief. I have reviewed same, and the majority of the amendments conform to the authorization already given by Justice Moir. Those being the amendments required by the death of Lila Gray.
[84] Two of the amendments which arguably, are not attributable to the death of Ms. Gray are paragraphs 14(c) alleging undue influence and 14(g) claiming the return of any “unaccounted for or improperly used funds to the Estate”.
[85] Implicit in the allegation of breach of fiduciary duty (clause 11) and to the claim for a full accounting (clause 13) is that any funds not properly accounted for or improperly used, should be returned. This relief is imbedded in or implied, when the pleading is taken as a whole.
[86] I will therefore allow the amendment to clause 14(g).
[87] With respect to the amendment sought in 14(a), the Plaintiff is past the time period for amending on its own that being 10 days from the close of pleadings. While the material facts supporting the amendment are not pleaded, it is early in the process. The Defendant is consenting on the basis that he be compensated in costs.
[88] In the circumstances, I feel this is a reasonable position of the Defendant. There will be some prejudice in that the claim must be defended. I concur however it can be compensated in costs. As it may require a further particulars, I find the awarding of reasonable costs to the Defendant to be just.
[89] The amendments sought by the Plaintiff are therefore granted, subject to costs in favour of the Defendant in the amount of $500.00.
Issue # 1- Should an Interlocutory Injunction be Granted?
[90] The ex-parte order issued May 6, 2016 required the Plaintiff to apply for an interlocutory injunction without delay. The Plaintiff did so on June 8, 2016. I do not find this to be unreasonable.
[91] The Civil Procedure Rules distinguish between an interim and an interlocutory injunction. (Rule 41.01) The former is effective before a motion for an interlocutory injunction and the latter is granted on Notice of Motion and before the trial. Both require an undertaking for the Defendant to be indemnified for loss should a judge in the final determination determine the injunction was not justified. (see Rule 41.06)
[92] The test for an interim injunction is set out in Rule 41.04(4). Included therein are considerations of urgency and what is just. The Plaintiff cited Rule 41.04 on the present motion but as stated that Rule pertains to an interim injunction.
[93] The onus is on the Plaintiff to establish that an interlocutory injunction should be granted. The leading case is RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which sets out the three part test as adopted in Manitoba (Attorney General v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, at paragraph 48 as follows:
48. Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the application would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases.
[94] In his brief the Defendant’s counsel put forth the test used by Davidson, J. in Anderson v. Evans, 2005 NSSC 50, which is a five (5) part test. The Defendant made argument in each of these steps in his brief. I have decided not to compare Anderson with RJR in any detailed fashion. I note step one in Anderson is similar to that in RJR, being whether there is a serious issue to be tried. The Defendant argued steps 2 and 3 irreparable harm and balance of convenience, in his submission at steps 2 and 4 of the test in Anderson.
[95] So as to avoid confusion, I am going to apply the three part test commonly used in RJR. I note that RJR was a case involving an interlocutory injunction as opposed to an interim injunction. In these circumstances, I prefer to use the three stage test, for an interlocutory injunction.
[96] Ultimately, the goal of the Court is to exercise its discretion in determining whether it is just and convenient to grant the remedy sought by the Plaintiff.
Step 1 - Serious Question to be Tried
[97] The Plaintiff submits it is appropriate to grant the order requested and refers to its terms as drafted.
[98] The order enjoins and refrains the Defendant from transferring or encumbering either property, one located in Sambro, Nova Scotia, and the other located in Williamswood, Nova Scotia. In addition, the order enjoins and refrains the Defendant from committing any waste with respect to these properties pending further order of the Court.
[99] The threshold for this part of the test is low. The Plaintiff argues the properties are what is left of Ms. Gray’s property. Further, the Estate argues that Mr. Gray acknowledges having transferred money and has not accounted for same.
[100] The Defendant submits among other things, that the Deeds were signed before an impartial third party, and further there is no suggestion that Ms. Gray did not appreciate the nature of the transactions.
[101] This is not a time to delve too deeply into the merits. It is noteworthy that Ms. Gray commenced the action while she was living and in doing so alleged the Defendant used the Power of Attorney to benefit himself. (Paragraph 12 of Statement of Claim)
[102] Perhaps, Mr. Gray will fully account. That is yet to be seen. For now the Defendant does acknowledge that the first part of the test is “barely met”.
[103] I find that the first part of the test has been met by the Plaintiff.
Step 2 – Irreparable Harm
[104] Irreparable harm has been defined by the caselaw as harm that cannot be quantified in damages. The test is whether the Plaintiff will suffer such harm if the injunction is refused.
[105] The Plaintiff states that if the injunction is refused, the prospects of recovering for the Estate will be extremely difficult. The Plaintiff submits the Defendant acknowledges the money was his mother’s, but it has not been returned to her Estate. The Plaintiff argues it cannot be assumed that the properties will be maintained by the Defendant.
[106] The Defendant points out that the evidence of irreparable harm must be clear and not speculative. He submits the Plaintiff has not shown clear evidence of irreparable harm and there is no indication the properties will be sold. In fact, the Defendant says the properties have not been listed for sale and that he does not plan to “in the near future”. This of course, is no guarantee. The evidence is clear that Mr. Gray conveyed the properties jointly to he and his daughter, subsequent to the Deed from Lila Gray.
[107] Mr. Gray argues that even if the properties were sold, the value could be easily quantified. Therefore, it is not the type of harm that cannot be quantified in costs. He argues further that the value of the properties could be determined and “easily collected”.
[108] The amount involved is substantial. Mr. Garrison’s affidavit states his estimate of the properties is $200,000.00 each (paragraph 11). Further, he stated his calculation of the funds unaccounted for is $100,000.00 not counting the TFSA, estimated to be worth $50,000.00.
[109] I repeat this is not the time to delve too deeply into the merits. Mr. Gray has stated in his affidavit there has been no wrongdoing, in effect.
[110] It must be remembered that these assets, if properly Ms. Gray’s at the time of her death, would be included in her bequests under her Last Will and Testament, attached as Exhibit “B” to Mr. Garrison’s affidavit.
[111] Until matters are determined at trial, I find there is a reasonable basis for the concern of the Plaintiff that irreparable harm will result. It is of little assurance that the properties will not be listed in the near future, or that their value can easily be determined. This is litigation that was unresolved prior to the death of the Plaintiff. In paragraph 14(c) of the Statement of Claim she pleaded that the properties should be returned to her.
[112] As irreparable harm and balance of convenience are related, I will return to discuss it when under the third step, balance of convenience.
Step 3 – Balance of Convenience
[113] Under this step it is necessary to consider the impact upon the parties resulting from the granting or withholding of the interlocutory injunction.
[114] The Plaintiff in commencing this action was seeking that she to be returned to her original position prior to the conveyance of the properties, and prior to the unwarranted expenditure of any funds, as alleged. In that sense there would be irreparable harm if the properties were conveyed or free to be conveyed.
[115] Mr. Gray argues that not granting the injunction would pose a mere inconvenience to the Plaintiff, while depriving the Defendant of the enjoyment of his property rights. Thus, Mr. Gray argues the balance of convenience favours him.
[116] Subject to the further directions I shall give regarding the remedies sought in the order, I find that the balance of convenience favours the Plaintiff Estate. For these properties not to be secured or protected in some fashion is more than a mere inconvenience pending a final determination of the issues.
[117] The Probate Legislation and Regulations place stringent requirements upon Executors in the Administration of Estates, including the obligation to preserve and maintain assets and ensure no waste is committed. All assets of an estate must be properly “called in” and preserved. All bills paid. Then and only then can a distribution occur in law, and only after a detailed accounting is presented.
[118] Considering all three (3) steps and the evidence in its entirety, I am satisfied this is a situation that cries out for the granting if an interlocutory injunction.
[119] In reaching this conclusion I find it unnecessary to rely on the unsworn affidavit of Ms. Gray, which is attached as Exhibit “C” to Mr. Garrisons affidavit.
[120] For the forgoing reasons I find it is just and convenient to grant the interlocutory orders sought by the Plaintiff.
Conclusion
1) Portions of the affidavit of Mr. Garrison are struck with the result that those paragraphs shall be admitted as set out in Appendix “A”.
2) The determination of evidentiary issues at trial will be for the presiding judge. The rulings on this motion are not binding on the trial judge.
3) Ms. Sampson need not be added as a Defendant for the purpose of this motion. However, in light of Rule 35.03(4)(c) the Plaintiff shall consider adding Ms. Sampson as a Defendant in the action.
4) An accounting is ordered to be completed by the Defendant, Mr. Gray, in accordance with the direction contained in paragraph 77 of the Decision.
5) The Amendments sought by the Plaintiff are granted with costs in favour of the Defendant in the amount of $500.00.
6) In all of the circumstances, the Court is satisfied that it is just and convenient to grant an interlocutory injunction on the basis of the three part test contained in RJR.
7) The issuance of the Order on this motion is subject to the following directions given by the Court:
a. The Plaintiff shall file a proper undertaking of the Plaintiff in accordance with the Rule 41.06(1);
b. While the Plaintiff has sought possession of the properties in the affidavit of Mr. Garrison and in Plaintiff’s counsel submissions, this relief was not claimed in either the Notice of Motion or the order provided to the Court;
c. In the circumstances I find it is appropriate that the Plaintiff be given reasonable access to the real properties at reasonable times upon reasonable notice to the Defendant, Mr. Gray and to Ms. Sampson. Access shall be for the purposes of maintaining the properties and/or the completion of the duties upon the Executor and Personal Representative of the Estate of Lila Gray. The obligation on the Defendant not to commit waste remains.
d. Should the Plaintiff require possession and control of the properties, then the Plaintiff shall seek such a remedy on Notice by way a separate Motion.
8) In the result the Defendant’s motion is dismissed. Costs are awarded to the Plaintiff, in the cause.
Murray, J.
Appendix “A”
5. I understood that the Defendant had not filed a defence in relation to the matter. The Defence filed on March 21st, 2016 was not sent to our attention until April 13th, 2016 when it was forwarded by regular mail. Lila and I together worked on her affidavit in support of Default Motion and attached hereto and marked as Exhibit “C” is a true copy of the Affidavit we prepared.
7. In going through the accounts I have calculated there are approximately $100,000.00 worth of funds which are unaccounted for, a true copy of those bank statements are attached hereto and marked as Exhibit “E”, and my summary of the unaccounted for withdrawals referenced in Exhibit “C”.
8. In addition, Lila had TFSA funds which I estimate to have been worth approximately $50,000.00. The Defendant acknowledges transferring those into his own name but had never provided any information other than that statement. I am seeking that those monies be paid into Court so that they are safe pending a final determination of the action commenced by Lila. Attached hereto and marked as Exhibit “F” is a true copy of my proposed amendment.
10. There are two (2) properties in question, one (1) in which Lila resided and one (1) in which the Defendant continues to reside. Lila had previously signed over title to these two (2) properties to the Defendant. I am seeking an injunction order for both properties.
11. My “guesstimate” as to what each of these properties may be worth would be approximately $200,000.00 apiece.
12. In October of 2014, Lila requested that I made arrangements to have the locks changed on her home. Prior to the locks being changed, he had unfettered access to the home with his key. After the locker were changed, I provided one (1) to Lila, and kept one (1) for myself and gave one (1) to Lila’s neighbour.
13. The morning of Lila’s funeral service, Wednesday, April 27th, 2016, the Defendant showed up at Lila’s home to gain entry to the property but discovered that he could not. I asked the Defendant at that time if he would be attending his mother’s funeral service that afternoon. He did not reply. He did not attend.
14. The following day, Thursday, April 28th, 2016, the Defendant attended the property with his solicitor and a locksmith and proceeded to have the locks changed so that I can no longer gain access to the property. They permitted me one (1) hour to remove Lila’s personal possessions and property contained within the property to administer in accordance with her wishes. Clearly, without notice and being provided very little time, the significant majority of Lila’s property remains in the home. Since sworn, my Affidavit on May 2/16 arrangements were made between me and Scott so I was able to take as many belongings to deliver as Lila had expressed she wished to be specifically bequested and what I had storage for. The file cabinet remains in the home.
15. I am clearly concerned that I continue to have access to and control of this property pending the determination of the Court in relation to this matter.