WINSTON GREELEY, as Executor of the Estates of the late Violet Jane Greeley v. Robert Samuel, 2016 NLCA 26

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : Greeley Estate v. Greeley , 2016 NLCA 26 Date : June 8, 2016 Docket : 201401H0091 BETWEEN: WINSTON GREELEY, as Executor of the Estates of the late Violet Jane Greeley and Robert Samuel Greeley, and WINSTON GREELEY, in his own personal capacity APPELLANT AND: NORMAN GREELEY, MICHAEL GREELEY DONALD GREELEY, and ALBERT GREELEY RESPONDENTS Coram: Welsh, Rowe and White JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 200701E5763 Appeal Heard: February 15, 2016 Judgment Rendered: June 8, 2016 Reasons for Judgment by White J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: Robert R. Regular Counsel for the Respondent : Randy Wellon White J.A.: [ 1 ] Winston Greeley appeals an order that removed him as the executor of his parents’ estates, denied him any remuneration for his work as executor, and ordered him to pay costs on a solicitor-client basis. BACKGROUND

The Estates [2] Robert James Greeley and Violet Jane Greeley made their wills together on April 27, 1999. The wills are mirrored, identicalexcept for their names. [3] The Greeleys’ principal assets were the matrimonial home and a piece of farmland nearby on Dunn’s Hill Road. The farmlandis at the root of the conflict. According to Winston Greeley, Robert Greeley had divided the farmland into four plots sometime in the1970s. One plot was for his son Winston; one for his son Norman; one for his son Albert; and as his son Harold had died, one forHarold’s son Donald. [4] The division was very informal.

Robert Greeley was concerned that formally dividing the land on the back of the propertywould create new frontage and attract taxation. Instead of executing deeds, he walked up and down the property, showing each relativethe portion he wanted them to have. Some sons and grandsons relied on this informal process and proceeded to build on their land or sellit, but years later Robert Greeley continued to hold title to most of the back of the property. [5] Robert Greeley died on October 24, 2000; Violet Greeley died on December 6, 2006.

Their wills leave the whole backlands toNorman Greeley for life, and then to two grandsons, including a portion of the land that Winston Greeley remembers very specificallywas meant to belong to him. Administering the Estates [6] After his mother’s death Winston Greeley took out letters of probate for both his parents’ estates. He came back from Ontario,where he lives, and arranged for his mother’s funeral. He sold his brother Norman the matrimonial home and tried to sell him thehome’s contents and the car. [7] There things rested.

Winston Greeley did not distribute the proceeds of the sale of the home, did not collect the remainingchattels, and did not convey the farmland. He had various reasons. He did not have Canada Revenue Agency clearances. He did notwant to distribute assets until the estate was finally settled lest he end up with outstanding obligations. Once he had returned to Ontario itwas difficult to deal with the chattels and he was reluctant to let his brother throw them out. [8] Perhaps most importantly, Winston Greeley vacillated about conveying the farmland to his brother Norman. He felt he ownedpart of the land.

Sometimes he said he had a legal interest; sometimes a less tangible claim; sometimes he said he had no legal rights andwas willing to convey the land. The Court Process [9] The respondents made their first application to remove Winston Greeley in February 2008. Hoegg J. ordered Winston Greeleyto provide an affidavit saying whether he would assert a claim against the farmland and to provide an interim accounting of the estates. [10] Winston Greeley missed the deadlines. Eventually he told the respondents’ lawyer he would not make a claim, but did notprovide an affidavit.

Eventually he filed an accounting, but an incomplete one. [11] The respondents applied again in June 2008. Orsborn J. ordered Winston Greeley to provide a more complete accounting and tocollect his parents’ chattels. Winston Greeley filed a better but still incomplete accounting and did not collect the chattels. [12] The respondents made a third application on May 17, 2010. They accused Winston Greeley of bad faith, breaching courtorders, and taking over three years to administer simple estates without any resolution.

After much correspondence and a fewappearances, Winston Greeley applied for one hearing to resolve all the outstanding issues. [13] At the final hearing the applications judge said the case was a “sad situation”. He seems to have accepted Winston Greeley’sstory about his father’s actions and wishes, but concluded that it was irrelevant. Winston ought to have distributed the assets accordingto the words of Violet Greeley’s will, not his father’s unwritten wishes. He removed Winston Greeley as executor, refused himremuneration, and ordered that he pay solicitor-client costs.

ISSUES [14] Winston Greeley argues that the applications judge erred in removing Mr. Greeley as executor of the estates, determining thatMr. Greeley was not entitled to any remuneration for acting as executor of the estates, and ordering costs on a solicitor-client basis. STANDARD OF REVIEW [15] The standard of review for discretionary decisions is described in Langor v. Spurrell (1997), (NL CA), 157Nfld. & P.E.I.R. 301 (Nfld.

C.A.): [T]his Court ought not to interfere with the order that was made unless it can be said that the discretion was exercised beyondjurisdiction, contrary to principle, on the basis of palpable error in appreciation of the facts, or would cause a manifest injustice. [16] The decisions under appeal are all discretionary: see Letterstedt v. Broers (1884), 9 A.C. 371 (P.C.) (removing an executor isdiscretionary); Painter v. Painter Estate, 2008 ONCA 203 (refusing remuneration is discretionary); Hiscott v. Hall, 2015 NLCA 1 (costsorders are discretionary). ANALYSIS Removing Winston Greeley as Executor

[17] The test for removing an executor was set out by Green C.J.T.D. in Re: Adrian Fleming Estate, 2006 NLTD 112, 258 Nfld. &P.E.I.R. 340: [12] The grounds upon which a trustee, and hence an executor or administrator, may be removed include: positive misconductamounting to abuse of trust; endangerment of the estate or trust property; want of honesty or reasonable fidelity; lack of proper capacityor ability to execute the duties of office; and conflict of interest. … See also Dicks v.

Scott, 2010 NLCA 35, 298 Nfld. & P.E.I.R. 1. [18] Although the applications judge did not spell out the legal mechanics underpinning his decision, the record shows that WinstonGreeley was in a conflict of interest. He felt the wills were mistaken and that he had a personal interest in the farmland. His personalinterest and his duties as executor were incompatible. He could not claim the property for himself while also conveying it to thebeneficiaries. [19] A beneficiary does not need to wait to be prejudiced to have a conflicted executor removed.

As Green C.J.T.D. said in FlemingEstate, it is enough if the conflict places the executor “in a difficult situation”. In this case the conflict seems to have brought the estateto a standstill as Winston Greeley wavered about whether to assert his claim or abandon it. The beneficiaries will get their assets yearslate and after repeated applications. [20] In the circumstances there is no basis on which to conclude that the applications judge made any error in removing WinstonGreeley as executor.

Refusing Remuneration [21] In the first year of his executorship, Winston Greeley arranged his mother’s funeral, engaged a lawyer, and sold thematrimonial home. Those actions entailed real cost and effort. They would ordinarily justify some remuneration. [22] Trial courts have a broad discretion to allow or refuse remuneration under s. 52 of the Trustee Act, RSNL 1990, c. T-10. Theremuneration ought to be “adequate and just”. The relevant factors were described by Barry J. in Burling Estate, Re (1993), (NL SC), 112 Nfld. & P.E.I.R. 91 (Nfld. T.D.): (

a) the value of the estate assets being administered; (

b) the nature of the estate assets being administered ...; (

c) the degree of responsibility imposed upon the trustee by the terms of the will or other instrument... including the length or duration ofthe trust ...; (

d) the time expended by the trustee in the care and management of the estate; (

e) the degree of ability exhibited by the trustee in the care and management of the estate; (

f) the success or failure of the trustee in the care and management of the estate; (

g) whether or not some extraordinary service has been rendered by the trustee in the care and management of the estate. [23] The applications judge strongly emphasized factors (

e) and (

f) in refusing remuneration. “[Y]ou were acting on an improperpremise”, he said. “You have two court orders that you’ve begrudgingly, I guess, responded to but not to the letter of those, of thoseorders”; “you didn’t do anything to move the execution of this estate forward”. [24] Ordinarily these factors would justify reducing the executor’s remuneration rather than refusing it altogether, but thesecircumstances are not ordinary. Robert and Violet Greeley’s estates were quite simple. Their execution has been egregiously delayed.Estates are often settled within a year; more than eight have passed.

And the delay is due to Winston Greeley’s inaction and refusal tofollow court orders. [25] In the circumstances, it would have been disproportionate to what was at stake to request precise information about how thedelay prejudiced the beneficiaries. Refusing remuneration to the executor was a fair and practical way to compensate them. The Costs Order [26] Where there is “an issue of substance arising under the will that warranted the court application”, courts have ordered that theestate should pay the costs of the application: see e.g. Elton Estate v.

Elton, 2010 NLCA 2, 292 Nfld. & P.E.I.R. 237. [27] If Winston Greeley had raised his concern about his parents’ intentions promptly, the application to resolve entitlement to thefarmland would have been warranted and the Court would have had to decide the question of entitlement if properly before it. [28] This application should have been brought in 2007. Winston Greeley waited until he was ordered to either assert his claim orabandon it. Even then he let the deadline pass and waited a couple of more years.

The estate cannot be expected to pay for the ensuinglitigation. [29] A more difficult question is whether the trial judge made an error in ordering costs on a solicitor-client basis. The respondentssuggest that they “should not have had to incur any expenses in moving the matter forward”. [30] The cost of adjudicating claims is high, and at the end of the day someone must pay it. Any costs rule is an awkwardcompromise that does not fully mitigate the actual cost of litigation. Part of our system’s compromise is that a full indemnity for costs is

rare: see Petten et al. v. E.Y.E. Marine Consultants et al (1998), (NL SC), 179 Nfld. & P.E.I.R. 94 (Nfld. T.D.) atparas. 74–80. [31] Solicitor-client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on thepart of one of the parties”: Young v. Young, (SCC), [1993] 4 S.C.R. 3. They “represent an expression of censure orchastisement”: House of Haynes (Restaurant) Ltd. v. Snook (1995), (NL CA), 134 Nfld. & P.E.I.R. 23 (Nfld. C.A.) atpara. 50.

So although solicitor-client costs serve “a compensatory function”, their “justification … is the misconduct of the other party”:Petten, at para. 80. [32] Winston Greeley’s conduct has not been scandalous or outrageous. But his failure to follow court orders is deserving of rebuke. As Cameron J. said in Perry v. Heywood (1998), (NL SC), 175 Nfld. & P.E.I.R. 253 (Nfld. T.D.) at para. 63, … “[R]eprehensible” is a word of wide meaning. It can include conduct which is scandalous, outrageous or constitutes misbehaviour; butit also included milder forms of misconduct.

It means simply “deserving of reproof or rebuke”. [33] The failure to follow court orders does not invariably call for solicitor-client costs. In Petten, for example, somenoncompliance was “explicable”, and some had already been reflected in previous costs orders. But noncompliance puts solicitor-clientcosts on the table. In a civil contempt application, it becomes the rule and not the exception: G.E.B. v. K.A.A.M., 2011 NLCA 38, 308Nfld. & P.E.I.R. 206. [34] An analogous case is Gibbons Estate, 2011 ABCA 46, 513 A.R. 69. An executor, repeatedly and contrary to court orders,produced deficient accountings.

He was eventually removed and ordered to pay solicitor-client costs: It is clear on this record that the appellant acted irresponsibly and unreasonably in performing his duties as executor. Solicitor-clientcosts may be awarded against an executor who is guilty of serious misconduct …. [35] An executor who stalled for many years before conveying properties was ordered to pay solicitor-client costs in Oldfield v.Hewson, (Ont. S.C.). The executor had also committed a breach of trust. On the other hand, the executor had notbreached any court orders. [36] This case is close to the line.

Winston Greeley did not act dishonestly or in bad faith. He behaved poorly, but in a difficultsituation not entirely of his own making. On the other hand, he received clear court orders informing him of his responsibilities, and theyears of needless delay in this case stem from his unwillingness to follow those orders. [37] Winston Greeley’s misconduct has already been addressed by a denial of reimbursement. In the circumstances, I might havefelt that an order that he pay costs personally on a party-and-party scale might fully reflect his responsibility.

But the applicationsjudge’s costs order is discretionary and entitled to deference. In the circumstances there is no basis to disturb it. [38] Accordingly, I would affirm the order of the applications judge dated October 23, 2014 and dismiss the appeal. As the matterwould not have been the subject of trial litigation and appeal but for the actions of Winston Greeley, the respondents shall have costs onthe appeal to be taxed on a solicitor-client basis. ___________________________________ C. W. White J.A. I Concur: ____________________________________ B. G. Welsh J.A.

I Concur: ____________________________________ M. H. Rowe J.A.