1. Introduction
Re James Estate[1] is an unusual case. It concerns a disbarred lawyer who made an application to be appointed administrator for the estate of a deceased person and an order dispensing with the requirement that he post security. The application was referred to the court for a decision, and Justice Graeme Mew dismissed the application.
2. Facts
The testator died in April 2023. He made his will in September 2022. On the back sheet of the Will, where one would normally find the name and address of the drafting solicitor, there appeared the name and address of the applicant, William J Bishop, ‘Consultant’. Bishop is a disbarred lawyer.
After a hearing in 2012, the Law Society of Ontario found Mr. Bishop guilty of professional misconduct for participating in, or knowingly assisting in dishonest and fraudulent conduct by his vendor/purchaser clients and others in obtaining mortgage funds under false pretenses in connection with 14 transactions. The Law Society Appeal Tribunal Division and the Divisional Court upheld the decision.[2] The Divisional Court stated in its decision that there did not appear to be any real concern that Mr. Bishop would repeat the impugned conduct, but held that this did not detract from ‘the pressing need to send a consistent message that engaging in fraudulent conduct by a lawyer is a matter that will not be tolerated because of its impact on the profession as a whole’.
The named executor renounced two days after the testator died, and on 30 April 2023 the heirs of the estate signed consents to Mr Bishop’s application. Moreover, by notice of motion in October 2023 the heirs asked the court to permit Mr Bishop to be appointed administrator and to waive the requirement that he post security. In support of their motion the heirs stated that Mr Bishop is a family friend of many years, and a long-term friend, confidant and advisor of the testator, that the testator never lost confidence in Mr. Bishop despite the disbarment, that Mr Bishop continued to advise the testator and the family, and that they, the heirs, are of opinion that Mr. Bishop is the most trusted and qualified person to be the administrator of the estate. However, the heirs did not attach an affidavit in support of their notice of motion. And the applicant did not bring his own motion or file any evidence, so there was no evidence before the court.
In September 2023 the application judge issued an endorsement (‘the ‘September Direction’), which stated that the application had been referred to him by the registrar under Rule 74.14(4) of the Rules of Civil Procedure,[3] to consider whether it raised an issue that should be determined by a judge. The application judge invited the applicant, or any other person who would be affected if the court rejected the application to bring a motion for directions. The applicant did not respond to the invitation.
3. Analysis and Judgment at First Instance
Justice Mew noted that, as a matter of practice, courts are reluctant to interfere with a testator’s choice of executor. Further, case law holds that past misconduct of an executor is not a basis for interfering with the testator’s choice, unless it is probable that the interests of the estate are likely to be endangered, or that the estate will not be administered properly.
On the other hand, his Honour stated that former lawyers are prohibited from providing legal services, and under the Law Society Ac,t[4] legal services include preparing testamentary and other documents that relate to the estate of a person. His Honour stated that it was not his role to decide whether Mr. Bishop’s involvement with the drafting of the will and the settling of the testator’s estate amount to the unauthorized practice of law. But he noted that the facts certainly raise questions about the nature and extent of Mr. Bishop’s involvement and relationship with the testator and his family.
His Honour noted that Mr. Bishop has been held to have participated, or knowingly assisted, in dishonest and fraudulent conduct, and has had his licence to practice law revoked. In its decision, the Divisional Court noted (para 519) the importance of ‘the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness’. Besides, the testator did not name Mr. Bishop executor and therefore he is not aided by the presumption in favour of the testator’s choice of executor.
His Honour found:
25 The circumstances, while not indicative of any future conduct on Mr. Bishop’s part which would injure the interests of the Estate, do raise a concern that aspects of his involvement with the late Mr. James and his estate at the very least skirt around the fringes of the unauthorised practice of law, and quite possibly cross the line completely. And Mr. Bishop has offered no evidence to allay the court’s concerns regarding his involvement with this estate. This weighs heavily against his application.
He held that the court cannot allow the application simply because the heirs want it, for he has lost the privilege of practicing law and cannot provide legal services. He went on to hold:
27 The Law Society Act requires the Law Society, as the regulator of lawyers and paralegals in Ontario, inter alia, to ensure standards of learning, professional competence and professional conduct, and to protect the public interest. That, coupled with this court’s responsibility to maintain the rule of law and promote confidence in the administration of justice, militates against the court becoming an accessory to conduct which undermines the public interest in having effective regulation of the legal profession and prohibiting disbarred lawyers from providing legal services.
28 Considering all of the circumstances, this is one of those rare cases where the court should invoke its inherent discretion to decline an application for the appointment of an estate trustee.
Consequently, he dismissed Mr. Bishop’s application.
The applicant appealed.
4. Analysis and Judgment on Appeal
Justice S. Gomery wrote the judgment on behalf of the court.
Motion to Introduce Fresh Evidence
Her Honour first dismissed the appellant’s motion to introduce fresh evidence because it did not meet the established test. The appellant’s affidavit filed in support of his motion consists of evidence that could have been adduced earlier, namely, after Justice Mew’s invitation to the appellant to bring a motion for directions. She held that the denial of the appellant’s application cannot be considered to be punishment, since no one has a right to be granted administration of an estate.
Discretion to Refuse the Appointment Even Though it Was Unopposed
Under s 7(1) of the Estates Act,[5] the Superior Court of Justice is responsible for granting probate and letters of administration, and that requires the court to determine applications for appointment. The court’s role for this purpose is not simply adjudicatory, it is also inquisitory.[6] This means that the court can dismiss an application if there is no evidence to support it, even if the beneficiaries support it.[7] Moreover, Rules 74 and 75 of the Rules of Civil Procedure confirm the court’s supervisory role in estate matters. The court also has inherent jurisdiction to remove a trustee when necessary.
Justice Gomery held that this inherent jurisdiction empowers a Superior Court judge to refuse to appoint a trustee, and semble, also to refuse an application for probate or administration. While the appellant concedes that the court may refuse an application in specific circumstances, he argued that this jurisdiction is limited by s 29 of the Estates Act. Section 29(1) lists the persons who may be appointed as ‘in the discretion of the court seems best’. Subsection (2) provides that the persons listed in subsection (1) may request that someone else be appointed if the named executor renounces or is unwilling or unable to act, but the court is not obliged the grant the request. Moreover, both subsections are subject to subsection (3). It states that the court is not required to appoint a person who would have been entitled to be appointed if subsection (3) had not been passed. ‘But the court may appoint such person as it thinks fit’.
Her Honour held that the court may exercise its discretion even if an application is unopposed. That is because of its inquisitorial jurisdiction, and its gatekeeping and oversight role with respect to the trustees, and semble, executors and administrators. Thus, she concluded that the application judge had an inherent jurisdiction to dismiss the applicant’s application, even though the beneficiaries supported it.
Did the Application Judge Err in Exercising His Discretion
The exercise of the judge’s inherent discretion leads to a determination involving mixed fact and law and, as such, is entitled to deference. The range of matters the judge may consider is broad and is not restricted to the welfare of the beneficiaries. The application judge’s consideration of ‘the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law’ is another relevant factor, as are the wishes of the heirs. Since the applicant had not submitted any evidence to allay the court’s concern that he might be engaged in the practice of law, and after weighing competing considerations, the application judge dismissed the application.
Justice Gomery concluded that the application judge’s concerns were legitimate in the circumstances, having regard to the applicant’s professional history, his apparent involvement in drafting the deceased’s will after his disbarment, the resignation of the named executor only two days after the testator died, and the appellant’s act of securing the beneficiaries consent to his application.
Consequently, her Honour held that it was reasonable for the application judge to conclude that public confidence in the administration of justice would be undermined if he were appointed administrator. She also rejected the appellant’s argument that the application judge’s focus was on the appellant’s disbarment. His concern was principally with his activities in and about the estate.
Justice Gomery also found that the application judge identified legitimate concerns about the possible unlicensed practice of law by the appellant and the impact on the public’s perception on the administration of justice if he was named administrator. These concerns were based on the public record. Hence it was open to the application judge to reach the decision he did.
Was There a Reasonable Apprehension of Bias?
Judges are presumed to act impartially.[8] To rebut the presumption, a party must adduce clear and cogent evidence to show that a reasonable person would conclude that the judge was biased. The appellant did not rebut the presumption of impartiality.
The argument that the referral of the application to the application is inherently suspicious is groundless. Under Rule 74.14, the registrar must refer an application to a judge for determination ‘if, in the registrar’s opinion, the application raises an issue that requires determination by a judge’ The appellant suggested that the registrar made the referral because it was well-known in the community that he was a disbarred lawyer.
However, there is another clear explanation for the referral, namely, that the appellant was asking for an order that only a judge can grant. Rule 74.14(1)(a) provides that the registrar may grant an appointment if satisfied that the application contains all the evidence and supporting documents required by the Rules or a statute. Otherwise, under Rule 74.14(1)(b), the registrar can only issue a certificate ‘if directed by a judge’. Under Rule 74.14(1) an application for appointment must include any security required by the Estates Act, and under s 35 of that Act a person who seeks to be appointed administrator must give a bond to the judge of the court that makes the grant. The appellant did not provide proof that he had obtained a bond. He also did not comply with Rule 74.11(6) by filing an affidavit setting out the deceased’s debts and a proposal about their payment. Therefore, the registrar had no choice but had to refer the matter to a judge. In any event, the appellant sought a waiver of the bond requirement and that must also be referred to a judge, since only a judge can waive the requirement under s 37(2) of the Estates Act.
Justice Gomery also dismissed the appellant’s argument that the application judge’s reasons show that he had made up his mind at the time of the September Direction that the applicant was not fit to be appointed administrator. Her Honour took the view that it was legitimate for the application judge to scrutinize the application more closely in light of the appellant’s professional history. Besides, she found that the reasons ‘do not read as an ex post facto justification for a decision that he made prior to issuing the direction. Besides the application judge could not have closed his mind to evidence and arguments that were never presented to him. They were not presented to him because the applicant chose not to respond to the September Directive and the heirs failed to support their notice of motion with supporting evidence.
—a
[1] 2023 ONSC 6432, affirmed 2024 ONCA 623.
[2] 2014 ONSC 5057 (Div Ct).
[3] RRO 1990, Reg 194.
[4] RSO 1990, c L.8.
[5] RSO 1990, c E.21.
[6] Citing Otis v Otis (2004), 7 ETR 3d 221 (Ont SC), paras 22-24, per Cullity J, and Neuberger v York, 2016 ONCA 191, paras 67-68.
[7] Citing Otis v Otis, ibid, and McLaughlin v McLaughlin, 2015 ONSC 3491, paras 31-36.
[8] Citing R v Teskey, 2007 SCC 25.
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Written by: Albert Oosterhoff
Posted on: November 28, 2024
Categories: Commentary, Estate Administration, WEL Newsletter
1. Introduction
Re James Estate[1] is an unusual case. It concerns a disbarred lawyer who made an application to be appointed administrator for the estate of a deceased person and an order dispensing with the requirement that he post security. The application was referred to the court for a decision, and Justice Graeme Mew dismissed the application.
2. Facts
The testator died in April 2023. He made his will in September 2022. On the back sheet of the Will, where one would normally find the name and address of the drafting solicitor, there appeared the name and address of the applicant, William J Bishop, ‘Consultant’. Bishop is a disbarred lawyer.
After a hearing in 2012, the Law Society of Ontario found Mr. Bishop guilty of professional misconduct for participating in, or knowingly assisting in dishonest and fraudulent conduct by his vendor/purchaser clients and others in obtaining mortgage funds under false pretenses in connection with 14 transactions. The Law Society Appeal Tribunal Division and the Divisional Court upheld the decision.[2] The Divisional Court stated in its decision that there did not appear to be any real concern that Mr. Bishop would repeat the impugned conduct, but held that this did not detract from ‘the pressing need to send a consistent message that engaging in fraudulent conduct by a lawyer is a matter that will not be tolerated because of its impact on the profession as a whole’.
The named executor renounced two days after the testator died, and on 30 April 2023 the heirs of the estate signed consents to Mr Bishop’s application. Moreover, by notice of motion in October 2023 the heirs asked the court to permit Mr Bishop to be appointed administrator and to waive the requirement that he post security. In support of their motion the heirs stated that Mr Bishop is a family friend of many years, and a long-term friend, confidant and advisor of the testator, that the testator never lost confidence in Mr. Bishop despite the disbarment, that Mr Bishop continued to advise the testator and the family, and that they, the heirs, are of opinion that Mr. Bishop is the most trusted and qualified person to be the administrator of the estate. However, the heirs did not attach an affidavit in support of their notice of motion. And the applicant did not bring his own motion or file any evidence, so there was no evidence before the court.
In September 2023 the application judge issued an endorsement (‘the ‘September Direction’), which stated that the application had been referred to him by the registrar under Rule 74.14(4) of the Rules of Civil Procedure,[3] to consider whether it raised an issue that should be determined by a judge. The application judge invited the applicant, or any other person who would be affected if the court rejected the application to bring a motion for directions. The applicant did not respond to the invitation.
3. Analysis and Judgment at First Instance
Justice Mew noted that, as a matter of practice, courts are reluctant to interfere with a testator’s choice of executor. Further, case law holds that past misconduct of an executor is not a basis for interfering with the testator’s choice, unless it is probable that the interests of the estate are likely to be endangered, or that the estate will not be administered properly.
On the other hand, his Honour stated that former lawyers are prohibited from providing legal services, and under the Law Society Ac,t[4] legal services include preparing testamentary and other documents that relate to the estate of a person. His Honour stated that it was not his role to decide whether Mr. Bishop’s involvement with the drafting of the will and the settling of the testator’s estate amount to the unauthorized practice of law. But he noted that the facts certainly raise questions about the nature and extent of Mr. Bishop’s involvement and relationship with the testator and his family.
His Honour noted that Mr. Bishop has been held to have participated, or knowingly assisted, in dishonest and fraudulent conduct, and has had his licence to practice law revoked. In its decision, the Divisional Court noted (para 519) the importance of ‘the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness’. Besides, the testator did not name Mr. Bishop executor and therefore he is not aided by the presumption in favour of the testator’s choice of executor.
His Honour found:
25 The circumstances, while not indicative of any future conduct on Mr. Bishop’s part which would injure the interests of the Estate, do raise a concern that aspects of his involvement with the late Mr. James and his estate at the very least skirt around the fringes of the unauthorised practice of law, and quite possibly cross the line completely. And Mr. Bishop has offered no evidence to allay the court’s concerns regarding his involvement with this estate. This weighs heavily against his application.
He held that the court cannot allow the application simply because the heirs want it, for he has lost the privilege of practicing law and cannot provide legal services. He went on to hold:
27 The Law Society Act requires the Law Society, as the regulator of lawyers and paralegals in Ontario, inter alia, to ensure standards of learning, professional competence and professional conduct, and to protect the public interest. That, coupled with this court’s responsibility to maintain the rule of law and promote confidence in the administration of justice, militates against the court becoming an accessory to conduct which undermines the public interest in having effective regulation of the legal profession and prohibiting disbarred lawyers from providing legal services.
28 Considering all of the circumstances, this is one of those rare cases where the court should invoke its inherent discretion to decline an application for the appointment of an estate trustee.
Consequently, he dismissed Mr. Bishop’s application.
The applicant appealed.
4. Analysis and Judgment on Appeal
Justice S. Gomery wrote the judgment on behalf of the court.
Motion to Introduce Fresh Evidence
Her Honour first dismissed the appellant’s motion to introduce fresh evidence because it did not meet the established test. The appellant’s affidavit filed in support of his motion consists of evidence that could have been adduced earlier, namely, after Justice Mew’s invitation to the appellant to bring a motion for directions. She held that the denial of the appellant’s application cannot be considered to be punishment, since no one has a right to be granted administration of an estate.
Discretion to Refuse the Appointment Even Though it Was Unopposed
Under s 7(1) of the Estates Act,[5] the Superior Court of Justice is responsible for granting probate and letters of administration, and that requires the court to determine applications for appointment. The court’s role for this purpose is not simply adjudicatory, it is also inquisitory.[6] This means that the court can dismiss an application if there is no evidence to support it, even if the beneficiaries support it.[7] Moreover, Rules 74 and 75 of the Rules of Civil Procedure confirm the court’s supervisory role in estate matters. The court also has inherent jurisdiction to remove a trustee when necessary.
Justice Gomery held that this inherent jurisdiction empowers a Superior Court judge to refuse to appoint a trustee, and semble, also to refuse an application for probate or administration. While the appellant concedes that the court may refuse an application in specific circumstances, he argued that this jurisdiction is limited by s 29 of the Estates Act. Section 29(1) lists the persons who may be appointed as ‘in the discretion of the court seems best’. Subsection (2) provides that the persons listed in subsection (1) may request that someone else be appointed if the named executor renounces or is unwilling or unable to act, but the court is not obliged the grant the request. Moreover, both subsections are subject to subsection (3). It states that the court is not required to appoint a person who would have been entitled to be appointed if subsection (3) had not been passed. ‘But the court may appoint such person as it thinks fit’.
Her Honour held that the court may exercise its discretion even if an application is unopposed. That is because of its inquisitorial jurisdiction, and its gatekeeping and oversight role with respect to the trustees, and semble, executors and administrators. Thus, she concluded that the application judge had an inherent jurisdiction to dismiss the applicant’s application, even though the beneficiaries supported it.
Did the Application Judge Err in Exercising His Discretion
The exercise of the judge’s inherent discretion leads to a determination involving mixed fact and law and, as such, is entitled to deference. The range of matters the judge may consider is broad and is not restricted to the welfare of the beneficiaries. The application judge’s consideration of ‘the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law’ is another relevant factor, as are the wishes of the heirs. Since the applicant had not submitted any evidence to allay the court’s concern that he might be engaged in the practice of law, and after weighing competing considerations, the application judge dismissed the application.
Justice Gomery concluded that the application judge’s concerns were legitimate in the circumstances, having regard to the applicant’s professional history, his apparent involvement in drafting the deceased’s will after his disbarment, the resignation of the named executor only two days after the testator died, and the appellant’s act of securing the beneficiaries consent to his application.
Consequently, her Honour held that it was reasonable for the application judge to conclude that public confidence in the administration of justice would be undermined if he were appointed administrator. She also rejected the appellant’s argument that the application judge’s focus was on the appellant’s disbarment. His concern was principally with his activities in and about the estate.
Justice Gomery also found that the application judge identified legitimate concerns about the possible unlicensed practice of law by the appellant and the impact on the public’s perception on the administration of justice if he was named administrator. These concerns were based on the public record. Hence it was open to the application judge to reach the decision he did.
Was There a Reasonable Apprehension of Bias?
Judges are presumed to act impartially.[8] To rebut the presumption, a party must adduce clear and cogent evidence to show that a reasonable person would conclude that the judge was biased. The appellant did not rebut the presumption of impartiality.
The argument that the referral of the application to the application is inherently suspicious is groundless. Under Rule 74.14, the registrar must refer an application to a judge for determination ‘if, in the registrar’s opinion, the application raises an issue that requires determination by a judge’ The appellant suggested that the registrar made the referral because it was well-known in the community that he was a disbarred lawyer.
However, there is another clear explanation for the referral, namely, that the appellant was asking for an order that only a judge can grant. Rule 74.14(1)(a) provides that the registrar may grant an appointment if satisfied that the application contains all the evidence and supporting documents required by the Rules or a statute. Otherwise, under Rule 74.14(1)(b), the registrar can only issue a certificate ‘if directed by a judge’. Under Rule 74.14(1) an application for appointment must include any security required by the Estates Act, and under s 35 of that Act a person who seeks to be appointed administrator must give a bond to the judge of the court that makes the grant. The appellant did not provide proof that he had obtained a bond. He also did not comply with Rule 74.11(6) by filing an affidavit setting out the deceased’s debts and a proposal about their payment. Therefore, the registrar had no choice but had to refer the matter to a judge. In any event, the appellant sought a waiver of the bond requirement and that must also be referred to a judge, since only a judge can waive the requirement under s 37(2) of the Estates Act.
Justice Gomery also dismissed the appellant’s argument that the application judge’s reasons show that he had made up his mind at the time of the September Direction that the applicant was not fit to be appointed administrator. Her Honour took the view that it was legitimate for the application judge to scrutinize the application more closely in light of the appellant’s professional history. Besides, she found that the reasons ‘do not read as an ex post facto justification for a decision that he made prior to issuing the direction. Besides the application judge could not have closed his mind to evidence and arguments that were never presented to him. They were not presented to him because the applicant chose not to respond to the September Directive and the heirs failed to support their notice of motion with supporting evidence.
—a
[1] 2023 ONSC 6432, affirmed 2024 ONCA 623.
[2] 2014 ONSC 5057 (Div Ct).
[3] RRO 1990, Reg 194.
[4] RSO 1990, c L.8.
[5] RSO 1990, c E.21.
[6] Citing Otis v Otis (2004), 7 ETR 3d 221 (Ont SC), paras 22-24, per Cullity J, and Neuberger v York, 2016 ONCA 191, paras 67-68.
[7] Citing Otis v Otis, ibid, and McLaughlin v McLaughlin, 2015 ONSC 3491, paras 31-36.
[8] Citing R v Teskey, 2007 SCC 25.
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