TD Can. Trust v. Cheifetz, (2005) 201 O.A.C. 120 (CA)

• Judge: Doherty, MacFarland and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 15, 2005
• Jurisdiction: Ontario
• Citations: (2005), 201 O.A.C. 120 (CA)

TD Can. Trust v. Cheifetz (2005), 201 O.A.C. 120 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JL.060

TD Canada Trust Company, in its capacity as executor of the estates of Emidio Simone and Laila Simone and trustee of the Simone Family Trust, Sifam Management & Sales Ltd., and AMD One Inc. (plaintiffs/respondent) v. Barbara Cheifetz, Stephen Cheifetz, Starlyn Investment Corp., SBC Corp., Nathan Cheifetz Family Trust, Doe 1, Doe 2 and Doe 3 (defendants/appellants)

(C42595; C42639)

Indexed As: TD Canada Trust Co. et al. v. Cheifetz et al.

Ontario Court of Appeal

Doherty, MacFarland and LaForme, JJ.A.

July 15, 2005.

Summary:

Earlier passing of account proceedings involving the former executor of an estate included a finding that the former executor intended to profit from certain transactions but did not include a finding that there was a breach of trust and/or breach of fiduciary duty. See 74 O.T.C. 18 (Sup. Ct.) and 137 O.A.C. 351. The new executor then sued the former one for breach of trust and breach of fiduciary duty. The former executor filed a statement of defence. The new executor alleged that the statement of defence raised matters already decided in the passing of accounts proceedings and moved for judgment and for an order striking the relevant paragraphs of the statement of defence.

The Ontario Superior Court declined to grant judgment but allowed the motion to strike in part. The former executor appealed. The new executor cross-appealed.

The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal.

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action between same parties - Earlier passing of account proceedings involving the former executor of an estate included a finding that the former executor intended to profit from certain transactions but did not include a finding that there was a breach of trust and/or breach of fiduciary duty - The new executor then sued the former one for breach of trust and breach of fiduciary duty - The former executor filed a statement of defence - The new executor alleged that the statement of defence raised matters already decided in the passing of accounts proceedings and moved for an order striking the relevant paragraphs of the statement of defence - The Ontario Court of Appeal dismissed the motion - Given the very different nature of the proceedings and the absence of specific findings of fact to support a breach of fiduciary duty, it was not clear at this stage of the proceedings that the former executor should not be permitted to litigate the issues pertaining to the alleged breach.

Cases Noticed:

Currie v. McDonald's Restaurants of Canada Ltd. et al. (2005), 195 O.A.C. 244 (C.A.), consd. [para. 23].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 25].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Counsel:

William V. Sasso, for the appellant, Stephen Cheifetz and Starlyn;

Thomas J. Corbett, for the appellant, Barbara Cheifetz;

Aaron A. Blumenfeld, for the respondent, TD Canada Trust.

This appeal was heard on June 15, 2005, by Doherty, MacFarland and LaForme, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by MacFarland, J.A., and released on July 15, 2005.