Executive Summary: Key Legal and Evidentiary Issues

• Dispute over administration and financial dealings within a family estate following the death of the matriarch.

• Determination of whether a $100,000 loan made by Julia Macpherson was to her brother personally or to the estate.

• Occupancy rent liability for estate property used by Richard Wyszatko for personal business purposes.

• Challenge to the trial judge’s factual findings and cost award by the appellants.

• Assessment of whether legal fees and interest related to the loan were properly awarded.

• Court of Appeal clarified liability attribution and upheld trial findings with minimal variation.

Background of the family and estate

Nadia and Albert Wyszatko purchased a property in East Gwillimbury in 1963 and operated two marinas on it—Albert’s Marina and Sail’er Inn. They had five children: Teddy, Julia, Richard, Irene, and Edmund. Upon Albert’s death in 1990, Teddy was granted a 50% interest in the business. Tensions later developed, leading to Teddy suing his mother and siblings in 2010 (excluding Julia). Nadia responded by changing her will in 2011, excluding Teddy from any inheritance related to the marinas. She named Julia, Richard, and Irene as estate trustees.

Settlement of litigation and loan arrangement

In 2014, the family settled Teddy’s lawsuit for $485,000. To help fund this, Richard asked Julia and Irene to each contribute $100,000. Julia agreed and advanced the money, with the understanding it was a loan to the estate. Richard later failed to repay the loan or acknowledge responsibility. Julia, frustrated by the lack of repayment and lack of clarity in estate management, initiated an application addressing twelve specific issues related to the estate and the marinas.

Trial court’s findings on the loan

The trial judge found that Julia’s loan was to the estate, not to Richard personally. Richard’s claim that he was not liable was rejected based on contemporaneous emails and his own conduct. Julia was also entitled to reimbursement for legal fees and interest payments tied to the loan. The trial judge awarded ongoing interest and partial indemnity costs in Julia’s favor. However, the formal order incorrectly included Richard personally as liable for repayment. This inconsistency became a key issue on appeal.

Use of estate property and occupation rent

Richard had taken over marina operations after the settlement and continued running the business on estate property without compensating the estate. The judge held that he had done so without permission and for personal benefit. Occupation rent was therefore ordered beginning June 3, 2014. In the absence of appraisal evidence, rent was set at $2,000 per month, with provision for future adjustment through appraisal. The court noted no rent had been paid and no appraisal arranged by the time of appeal.

Appeal grounds raised by Richard and Irene

On appeal, Richard argued that the trial judge had made palpable and overriding errors in assessing evidence, failed to give proper weight to his testimony, and erred in awarding costs. He also claimed he should not be personally liable for the loan or related payments. The appeal included a request to set aside the trial judge’s cost order, which had fixed payment at $104,722.39 against him and Irene.

Decision of the Court of Appeal

The Court of Appeal rejected the majority of the appellants’ arguments. It held that the trial judge's factual findings were entitled to deference and found no error justifying intervention. The judges clarified that the loan and related payments were owed by the estate—not by Richard personally—and accordingly varied paragraphs 1 and 2 of the trial judgment to remove his personal liability. The rest of the judgment, including the occupation rent order and cost award, was upheld.

Costs and final disposition

The Court of Appeal denied leave to appeal the cost award, holding that the trial judge had properly exercised her discretion. It confirmed that Julia, having succeeded in the application, was presumptively entitled to costs. The court found that the settlement offer made by Richard did not meet the requirements of the Rules of Civil Procedure and therefore did not warrant altering the costs outcome. The appeal was dismissed, except for the variation removing Richard’s personal liability for the loan. All other findings remained intact.