) ) ESTATE OF EDWARD ASSAF, DECEASED, BY ITS EXECUTOR WILLIAM ASSAF v. THE ESTATE OF, 2010 ONSC 6937

CITATION : Estate of Assaf v. Estate of Bosada, 2010 ONSC 6937 DIVISIONAL COURT FILE NO.: 150/09 DATE: 20101213 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FERRIER, MOLLOY AND HERMAN JJ.

BETWEEN: ) ) ESTATE OF EDWARD ASSAF, DECEASED, BY ITS EXECUTOR WILLIAM ASSAF AND THE ESTATE OF VIVIAN ASSAF Applicant/Appellant (Moving Parties) – and – THE ESTATE OF ROBERT BOSADA, BY ITS ESTATE TRUSTEE NAOMI TSUJI AND BERNARD BURTON Respondent )) )) )) )) ))))))) William Assaf , In Person Graham Pinos, Q.C., for the Applicant/ Appellant, Estate of Edward Assaf (deceased) Bernard Burton , for the Respondent, Estate of Robert Bosada (deceased) ) ) ) HEARD at Toronto: December 13, 2010 MOLLOY J. (orally) [ 1 ] This is a motion to vary or set aside the decision of Swinton J. dated July 12, 2010.

Swinton J. dismissed the motion by the Estate Trustee, Edward Assaf and Vivian Assaf to extend the time to perfect an appeal from a decision of Strathy J. dated February 26, 2009. Her refusal to grant that relief was based on the principle of res judicata . On June 8, 2010, Jennings J. had already dismissed a motion by the Estate Trustee seeking an extension of the time to perfect the same appeal. As of the date of the motion before Swinton J. there had been no appeal from the decision of Jennings J. [ 2 ] We agree entirely with the conclusion of Swinton J. that she was bound by the decision of Jennings J.

If the Estate Trustee wished to avoid the results of the motion before Jennings J., his appropriate recourse was to either appeal it or move to vary or set it aside. It was not proper to bring another motion before another judge seeking the same relief. [ 3 ] We are in full agreement with the decision of Swinton J. and for all the same reasons she stated. Therefore this motion to set aside or vary her order is dismissed. FERRIER J. COSTS [ 4 ] I have endorsed Volume I of the Moving Parties Motion Record as follows: “This motion is dismissed for oral reasons delivered this day.

Costs fixed at $10,000 including disbursements and GST payable out of the Estate of Edward Assaf.

[ 5 ] The Accountant of the Superior Court is directed to pay these costs, and the costs ordered by the Registrar, Jennings J. and Swinton J., forthwith out of the funds standing in Court.” MOLLOY J. FERRIER J. HERMAN J. Date of Reasons for Judgment: December 13, 2010 Date of Release: December 16, 2010 CITATION : Estate of Assaf v. Estate of Bosada, 2010 ONSC 6937 DIVISIONAL COURT FILE NO.: 150/09 DATE: 20101213 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FERRIER, MOLLOY AND HERMAN JJ.

BETWEEN: ESTATE OF EDWARD ASSAF, DECEASED, BY ITS EXECUTOR WILLIAM ASSAF AND THE ESTATE OF VIVIAN ASSAF Applicant/Appellant (Moving Parties) – and – THE ESTATE OF ROBERT BOSADA, BY ITS ESTATE TRUSTEE NAOMI TSUJI AND BERNARD BURTON Respondent ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: December 13, 2010 Date of Release: December 16, 2010