TD sought to add her to action against her father’s company based on line of credit he guaranteed
The Ontario Divisional Court has upheld a decision ordering a woman, as estate trustee, to answer for her father’s indebtedness to the Toronto Dominion Bank (TD) as a guarantor of a business line of credit extended to his company.
TD – the respondent in Mootrey v. The Toronto Dominion Bank, 2026 ONSC 3534 – granted the line of credit in February 1999. The appellant’s father and his wife executed personal guarantees. TD advanced funds to the company, which later fell into arrears and defaulted.
In April 2022, the father died. On the day of his passing, his daughter registered a power of attorney on the titles to two of her father’s real properties. She also transferred both titles into her name.
In February 2023, before the Ontario Superior Court of Justice, TD filed an action against the company and the two guarantors. Given the father’s death, TD added the daughter, in her capacity as estate trustee, to the action. TD moved for summary judgment on liability for the line of credit.
In April 2025, the motion judge saw no genuine issue for trial as to liability and held the father’s estate liable for the indebtedness under the line of credit extended to his company. The judge ordered the daughter, as estate trustee, to pay TD:
- the sum of $49,328.06, plus interest
- costs of $10,000 for the motion and the action
The judge found that the father personally guaranteed the company’s indebtedness. The judge explained that the daughter was confusing liability with enforceability.
During this explanation, the judge commented that the daughter assumed the estate trustee role upon her father’s death by acting as his power of attorney before his passing.
Court deems her estate trustee
The Divisional Court of the Ontario Superior Court of Justice dismissed the daughter’s appeal against the summary judgment order. First, the court found no misapprehension of the evidence on the motion judge’s part.
The court saw no palpable and overriding error in the judge’s factual findings that the father guaranteed the company’s indebtedness and that this liability passed to his estate.
The court discerned no error in the judge’s failure to explicitly tackle the appellant’s affidavit evidence. The court noted that the judge confirmed that he had read the materials and commended the appellant for filing “very thorough” documents.
Second, the court found no palpable or overriding factual error in the judge’s determination that the daughter was the estate trustee, based on the evidence. The court noted that she admitted to being the estate trustee during the litigation.
The court saw ample evidence –including the daughter’s knowledge about her father’s financial affairs and properties and her act of reaching out to TD upon his death – for the judge’s factual finding that the appellant was an executor de son tort.
The court explained that a trustee de son tort:
- was a person who took it upon themself to act as a trustee by possessing and administering trust property, despite not being appointed as such
- needed to account for their administration of property held in trust, including the property of a deceased individual with no appointed estate trustee
Third, the court rejected the daughter’s argument that the judge erred in finding that the estate owned the properties.
The court pointed out that the judge made no factual finding or order regarding property ownership, an issue that could arise if TD later wanted to enforce its order against the estate. The court added that her argument appeared to challenge the judge’s comments made in obiter.
Lastly, the court awarded TD, as the successful party, $7,500 in all-inclusive costs.
