Fabian Ryan O'Dea Applicant And: Michael O'Dea Respondent, 2018 NLSC 205

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : O'Dea v. O'Dea , 2018 NLSC 205 Date : October 19, 2018 Docket : 201801G0564 Between: Fabian Ryan O'Dea Applicant And: Michael O'Dea Respondent Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 15, 2018

Summary: Michael O’Dea applied to strike Ryan O’Dea’s claim against him on the basis that the pleadings were defective, lacking allegations of material of fact to support the claims. Alternatively, Michael O’Dea sought an order that the matter proceed by way of statement of claim rather than as an application in chambers. Held: although amendments to the pleadings may be appropriate to more clearly delineate the legal and factual bases for the claims, they were sufficient to enable Michael O’Dea to know the case to be met.

It was likely that the hearing of the matter would involve substantial disputes of material facts. Accordingly, it was ordered that the matter proceed by way of statement of claim. Appearances:

Tracy M. Pasley Appearing on behalf of the Applicant M. John Mate Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Mangrove v.

Newfoundland and Attorney General of Canada , 2009 NLTD 115 REASONS FOR JUDGMENT Orsborn, J. : INTRODUCTION [ 1 ] By way of an originating application (Fabian) Ryan O’Dea seeks recovery of certain monies asserted to be in the possession of Michael O’Dea, but impressed with trusts in favour of Ryan O’Dea. [ 2 ] Michael O’Dea has applied to strike the application on the basis that it fails to set out material facts and that, in any event, the dispute is more properly dealt with by the issuance of a statement of claim. [ 3 ] The originating application is presently set to be heard November 23 and 26, 2018. Issues 1.

Are the pleadings sufficient to enable Michael O’Dea to know the case to be met? 2. Should the matter proceed by way of statement of claim? Background [ 4 ] This proceeding is a component of a contentious family dispute involving the estate of Fabian O’Dea and his four children, including Ryan O’Dea and Michael O’Dea. [ 5 ] Ryan O’Dea’s application – as amended and filed on August 14, 2018 – relates to two different funds – an amount of cash and proceeds from two life insurance policies on the life of Fabian O’Dea. [ 6 ] As to the first fund, the application says: 4.

Prior to Fabian O’Dea’s passing on 16 February 2017, he gifted Ryan O’Dea the sum of $78,372.50. This gift was made on 3 February 2017. At the time the gift was made, Michael O’Dea took the sum of $78,372.50 to hold in trust for Ryan O’Dea. Despite many requests by Ryan O’Dea since 3 February 2017, Michael O’Dea has refused to transfer the sum of $78,372.50 to either Ryan O’Dea or a person/entity of Ryan O’Dea’s choosing. Michael O’Dea also has refused to account for the $78,372.50 and, more specifically, to advise Ryan O’Dea where the funds are being held and confirm they are secure. [ 7 ] As to the second: 5.

At the time of his passing on 16 February 2017, Fabian O’Dea held two life insurance policies with London Life. These policies bore numbers: O9F325576G and 30650869 (the “Policies”). Up to 3 February 2017, whenever Fabian O’Dea’s children were named as the beneficiaries of the Policies, each child was designated as an equal 25% beneficiary. 6. On or about 3 February 2017, Fabian O’Dea met with Mont Keough of London Life concerning the Policies and, more specifically, Ryan O’Dea’s share of the life insurance proceeds upon Fabian O’Dea’s imminent passing. At the meeting, Fabian O’Dea requested that Mr.

Keough alter the names of the beneficiaries under the Policies so that Michael O’Dea would be paid Ryan O’Dea’s 25% share of the insurance proceeds upon Fabian O’Dea’s passing. This money was to be held by Michael O’Dea in trust, for Ryan O’Dea and to be utilized to pay Ryan O’Dea’s debts. 7. Following the February 2017 meeting between Fabian O’Dea and Mont Keough , the beneficiaries under the Policies were altered so that Michael O’Dea became listed as a 50% beneficiary and Mr. O’Dea’s two daughters as 25% beneficiaries each.

8. Since Fabian O’Dea’s passing on 16 February 2017, 50% of the life insurance proceeds from the Policies has been paid to Michael O’Dea. The 50% share of the proceeds from the Policies totalled $252,953.36. 9.

Ryan O’Dea states that $126,476.68 of the total $252,953.36 paid to Michael O’Dea represents his share of the proceeds under the Policies. [ 8 ] Thus Ryan O’Dea asserts that Michael O’Dea is holding $204,849.18 ($78,372.50 + $126,476.68) belonging effectively to Ryan O’Dea. [ 9 ] The application goes on to assert: 10. ...Michael O’Dea had common law, equitable and fiduciary obligations to him as a Trustee and individual who took money on his behalf, which included duties of care and a duty of loyalty.

Michael O’Dea was negligent in the exercise of his aforenoted authority, responsibilities and obligations and is in breach of his common law and equitable obligations to Ryan O’Dea. 11. Ryan O’Dea states that he and Michael O’Dea, at all material times, were in a fiduciary relationship and Michael O’Dea has breached his fiduciary obligations to him. 12. Michael O’Dea also has breached his duty of loyalty to Ryan O’Dea. 13.

Further Michael O’Dea has been unjustly enriched and Ryan O’Dea has suffered a corresponding detriment by Michael O’Dea’s refusal to provide Ryan O’Dea with the monetary gift from Fabian O’Dea to Ryan O’Dea and Ryan O’Dea’s share of the proceeds of the life insurance Policies without juristic reason. 14. Ryan O’Dea states that Michael O’Dea is in breach of his express or implied trust obligations and duties. 15.

In the alternative, Ryan O’Dea states that Michael O’Dea is in breach of either the constructive trust or the resulting trust formed concerning Ryan O’Dea’s share of the life insurance proceeds from the Policies and the monies gifted by Fabian O’Dea to Ryan O’Dea. [ 10 ] Ryan O’Dea then asserts a claim for aggravated and punitive damages based on the conduct of Michael O’Dea and says that “he has been subject to harassment by Michael O’Dea, as well as collection agencies as he has not been able to follow through on financial commitments he made due to Michael O’Dea’s refusal to allow him access to the monies Michael O’Dea holds in trust for him”. (paragraph 16) [ 11 ] Paragraph 17 sets out a claim for damages: As a result of the acts and omissions of Michael O’Dea, Ryan O’Dea has suffered injury and damages in the form of psychological harm and other impairments, particulars of which include, but are not limited to, the following: a.

Depression, anxiety and emotional dysfunction; b. Loss of self-esteem and feelings of degradation; c. Impairment of his mental health and well-being; d. Loss of enjoyment of life; and e. Such other issues as may be proven at trial. [ 12 ] At the hearing, counsel for Ryan O’Dea said that – at least in the context of the matter proceeding in chambers – the claim for general and aggravated damages would not be pursued. However, she maintained that the claim for punitive damages would remain.

In the event that this matter should proceed by way of statement of claim, counsel would of course be free to pursue the full extent of damages as claimed. [ 13 ] The other relief requested: (

i) A Declaration that Michael O’Dea holds the sum of $240,849.18 in trust or otherwise for Ryan O’Dea;

(ii) An Order that Michael O’Dea pay to Ryan O’Dea or another person/entity of Ryan O’Dea’s choosing the sum of $240,849.18. [ 14 ] I note that the latter request assumes that the terms of any trusts are such that there would be no impediment to Ryan O’Dea’s collapsing the trust. discussion [ 15 ] Ryan O’Dea has filed 11 affidavits from six deponents. The evidence also includes audio recordings. Much of the evidence is directed to the events of February 3, 2017, some two weeks before Fabian O’Dea’s passing.

On this day, at Fabian O’Dea’s residence, the cash gifts were counted and distributed, and the changes in designation of beneficiaries under the insurance policies were signed. [ 16 ] However, the affidavits go on to set out numerous conversations between the deponent and others, including the father Fabian O’Dea. These conversations refer to the need to protect Ryan O’Dea and his financial interests, the sale of Ryan O’Dea’s real estate holdings and placement of the sale proceeds into a new trust to be established.

The affidavits contain numerous references to text messages and emails subsequent to February 3, apparently addressing, among other things: (

i) Fabian O’Dea’s intention with respect to the cash and insurance proceeds; (ii) Michael O’Dea’s assertion that he financially supported his father (presumably in response to Michael’s claim that the funds were given to him); (iii) Michael O’Dea’s dealings with the existing Ryan O’Dea trust; and, (iv) Michael O’Dea’s acknowledgement of the fact that the money he is holding is beneficially owned by Ryan O’Dea . [ 17 ] As noted, the affidavits also include audio recordings of four telephone conversations and one voicemail message between Ryan O’Dea and Michael O’Dea.

These recordings were made between May 8, 2017 and September 12, 2017. [ 18 ] Much of what is in the affidavits is, on its face, hearsay and may be inadmissible. Many of the assertions, at least on their face, appear to have no bearing on the characterization of the cash given to Michael O’Dea on February 3 or on the nature of the interest created by the designation of Michael O’Dea as a 50% beneficiary under the two life insurance policies. [ 19 ] To illustrate the point, I refer to two paragraphs from Ryan O’Dea’s amended affidavit: 18.

In 2013, my father established a trust for me, which is known as the Ryan O’Dea Trust. This Trust solely holds rental properties that my father gifted me. At the time of this Trust’s establishment on 1 May 2013, Michael O‘Dea, Shannon O’Dea Dawson and Kelly O’Dea Anthony were the named Trustees. In 2017, after our father’s passing, Michael O’Dea requested to be removed as a Trustee from the Ryan O’Dea Trust. It is my understanding he made the request to Kenneth Baggs, who was my dad’s lawyer. At his request, Michael O’Dea subsequently was replaced as a Trustee by Donald Anthony on or about 8 April 2017.

At the time he resigned as Trustee, Michael suggested that Don Anthony take his place. He also confirmed that he had been relieved of his duties on the Trust two months after he became a Trustee. 19. Since my father’s passing on 16 February 2017, the second trust mentioned in paragraph 7 of this Affidavit has been established for my benefit. It is known as the Ryan O’Dea Family Trust (2017).

My father had requested that this trust be established before his passing for the purposes of placing any money remaining (after the debts I listed for him were paid off) from both the cash gift to me and the life insurance proceeds. Before he passed away, my father also asked me to sell off all rental properties held in my personal name and that the proceeds from the sales be placed in this second trust. In addition, before he died, my father also asked me to transfer my personal residence into this second trust once the mortgage on it was paid off.

The plan was for me to get a monthly distribution from the newly created trust once the debts I had verbally listed for him were paid off. I agreed to all of this, as my father told me this is what he wanted. Unfortunately, due to my father’s sudden decline in February 2017, the second trust did not get established until after his death. My brother-in-law, Donald Anthony is and has always been the sole Trustee of the Ryan O’Dea Family Trust (2017). [ 20 ] I have difficulty relating these two paragraphs to the issues that require adjudication.

Nonetheless, counsel for Ryan O’Dea has chosen to file this and other affidavits in support of the trust claims.

Presumably, counsel considers the evidence relevant. [ 21 ] Michael O’Dea filed his own and two other affidavits, ostensibly in response to the originating application, but also in support of his application to have the matter transferred out of chambers. [ 22 ] His affidavit does not directly address the events of February 3, 2017 other than to assert (paragraph 7) “my father never advised me that he was giving me money in trust for Ryan…”. [ 23 ] The bulk of the affidavit is argument or directed to making statements about the credibility of other witnesses. [ 24 ] Paragraph 3 is representative:

3. I have great concern that much of the evidence presented in this application is argumentative, speculation about what my father intended and its [sic] inconsistent, with his other actions during his lifetime. I deny the truth of what is stated in the various different affidavits unless its specifically admitted by me. In particular, I challenge the truthfulness and credibility of each and every witness presented by the Applicant. I assert they are all unreliable and/or lacking in credibility as they are interested, related and biased parties who have clearly expressed animus for me at various times.

The one witness who is not a relative, who has not expressed animus for me, is Mont Keough, but he has clearly been threatened by my sister Shannon with legal action by my brother/sisters if he does not co- operate. I therefore believe Mr. Keough’s evidence is influenced by his own potential liability to Ryan in this matter.

I also am concerned that some of what has been presented is not untrue, but is a misleading portion of a much larger and more detailed privileged communications and conversations when we were trying at various times to resolve or settle various family disputes with the assistance of my uncles who are lawyers. If they are admissible, the complete and full account of what was said will reveal that my uncle Francis O’Dea and also my sisters and brother, have behaved in a dishonest and manipulative manner to try and change or reverse what my father did intended to have done.

ARE the pleadings SUFFICIENT? [ 25 ] Although there is an element of overkill and perhaps inconsistency in the pleading, I cannot conclude that it does not set out the case to be met. With respect to the cash gift, the basic allegation is that Fabian O’Dea gave $78,372.50 to Ryan O’Dea, and that Michael O’Dea took custody of it to hold it “in trust” for Ryan O’Dea. A later paragraph in the pleading refers to a resulting trust.

Read reasonably, the allegation is that Michael O’Dea is in possession of cash intended for and belonging to Ryan O’Dea, that Ryan O’Dea is the beneficial owner, and that Michael O’Dea holds the money in some kind of trust. I am not sure what is accomplished by bringing trust concepts into this claim.

There is no assertion in the pleading that Fabian O’Dea, as donor, intended to split the legal and beneficial ownership of the cash: Rather, the claim appears to be that Michael O’Dea simply took custody of cash intended for and beneficially owned by Ryan and Ryan now seeks possession of the money. [ 26 ] Similarly, incorporating an unjust enrichment claim into the cash claim issue appears to be unnecessary. Presumably, the deprivation said to be suffered by Ryan O’Dea is that of being deprived of his father’s gift.

Thus the gift – or other basis, if any for entitlement – would have to be established in order to find deprivation. But if the gift is established, then Ryan O’Dea is simply entitled to the return of his property, without recourse to concepts of constructive trust and unjust enrichment. [ 27 ] A finding of deprivation of Ryan O’Dea involving the insurance proceeds also requires the establishment of an entitlement – in some form – to those proceeds.

Once that entitlement is established, it seems to me that it would stand on its own without reference to just enrichment or constructive trust. [ 28 ] The assertions in the pleadings that Michael O’Dea is holding cash given to Ryan O’Dea and that the insurance monies (25%) were to be held in trust are straightforward, although the trust allegation lacks specifics.

The evidence to support those claims is a different matter but does not engage an issue at the pleadings level. [ 29 ] I am not prepared to strike the application on the basis of defects in the pleading; however, it should perhaps be amended to take out assertions of equitable and fiduciary obligations, unjust enrichment etc. if, following consideration by counsel, it is felt that such assertions add nothing to the legal basis for the claims.

Further, to the extent that Ryan O’Dea continues to assert a trust claim over either or both of the funds, particulars of the terms of the claimed trust should be included in the pleading. should the matter proceed in CHAMBERS? [ 30 ] The leading case is Newfoundland and Labrador is Mangrove v. Newfoundland and Attorney General of Canada , 2009 NLTD 115 , a decision of then Chief Justice Green.

That decision addressed the “unlikely to be any substantial dispute of fact” category under which a matter may be heard in chambers. [ 31 ] In considering this matter, I have been guided by the discussion in Mangrove , in particular paragraphs 17-20 . [ 32 ] The affidavits filed by Ryan O’Dea cover, amongst other things, the intentions of Fabian O’Dea – gleaned not only from actions, but also from numerous conversations; the circumstances of Ryan O’Dea – his need for financial assistance and guidance, his existing and proposed trust arrangements; and the understanding of Michael O’Dea concerning his father’s intentions, as shown by actions and numerous conversations. [ 33 ] I anticipate that much of this evidence will be subject to objection, either on grounds of relevance or hearsay.

Much of the evidence – particularly from Michael O’Dea’s siblings – will be subject to challenge on the basis of the lack of credibility of the witness. In particular, given that Ryan O’Dea is still pursuing a claim for punitive damages based on the conduct of Michael O’Dea, one would expect that evidence lead to support that claim will be subject to significant challenge. Michael O’Dea has not filed an affidavit specifically addressing the factual issues raised by the application.

His affidavit filed on October 1 – paragraph 3 of which is produced above – speaks of his father’s experience in establishing trusts, the discussions with his father of options for dealing with Ryan O’Dea’s financial situation, his father’s treatment of his four children (challenging the assertion that Fabian O’Dea always treated his children equally) and the history of the various trusts established. [ 34 ] Based on my review of the affidavits filed - primarily those filed on behalf of Ryan O’Dea – and looking at the case as presented by Ryan O’Dea – that is, leaving aside issues of admissibility – is readily apparent that the facts in support of the claim and the requested relief are in substantial dispute.

As presented, the case can reasonably be expected to consist of lengthy cross-examination and numerous objections. The resolution of the matter will depend primarily on the court’s assessment of the credibility of witnesses and the inferences to be drawn from facts ultimately found. It is unworkable and unreasonable to expect that a fair hearing and adjudication can be accomplished with a two-day chambers hearing. [ 35 ] Having considered the matter, I am satisfied that it is not appropriate for adjudication in chambers. It should proceed by way of statement of claim and trial.

[ 36 ] It may well be that with careful objective attention to the legal structure or shape of Ryan O’Dea’s claim to each of the funds – considered separately – the evidence relevant to those claims – for and against – can be more concisely identified. It may then follow that determination by way of

summary trial may be possible. [ 37 ] I note that, in an effort to move the matter along, and recognizing that examinations for discovery are available for either chambers or trial, I gave counsel leave to conduct discoveries of Mont Keough (insurance agent), Kelly O’Dea- Anthony, Shannon O’Dea-Dawson and Michael O’Dea. conclusion [ 38 ] The matter will proceed by way of a statement of claim. 1. The amended originating application filed August 14, 2018, including all damages, will stand as the statement of claim with Fabian Ryan O’Dea as Plaintiff and Michael O’Dea as Defendant. 2.

The Plaintiff has leave, should he consider it appropriate, to file an amended statement of claim no later than Friday, October 26, 2018. 3. The Defendant will file a defence on or before November 9, 2018. 4. Both parties will file their Rule 32 List of Documents on or before November 16, 2018. 5. Examinations of discovery for Kelly O’Dea-Anthony, Shannon O’Dea-Dawson and Michael O’Dea will be completed on or before November 30, 2018. 6. Discovery examination of Mont Keough will be conducted as soon as he can reasonably make himself available. 7.

The hearing dates set for November 23 and 26, 2018 will be removed from the court docket. 8. The costs of this application and the October 15, 2018 hearing will be in the cause. _____________________________ David J. Orsborn Justice