Aidan Fishman

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

This action arose from a slip and fall.

Defendant On-Site Maintenance & Repairs Inc., a winter maintenance contractor, brought a motion for dismissal based on formal and deemed admissions.

By the time of the hearing, the sole issue was costs.

The court found that the plaintiff failed to act reasonably in response to information indicating On-Site was not responsible for the area of the fall, and persisted in the claim despite opportunities to discontinue.

The court dismissed the action against On-Site and awarded costs to On-Site, emphasizing the plaintiff's unreasonable conduct in prolonging the litigation.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The applicant brought a motion seeking declarations that his 99-year-old mother was incapable of managing property and instructing counsel, and seeking the appointment of a litigation guardian and guardian of property.

The court reviewed competing capacity assessments and preferred the assessment finding incapacity, noting the mother's confusion and inability to understand the litigation.

The court appointed a neutral third-party lawyer as litigation guardian and guardian of property, passing over the mother's other son due to extreme family conflict and a prior finding of unconscionable procurement.

The court also ordered the mother's counsel to pay $3,500 in costs personally for taking unreasonable positions and failing to address his client's lack of capacity.

The applicant brought a motion seeking an order for his 99-year-old mother to undergo a capacity assessment pursuant to s. 105 of the Courts of Justice Act, and for the continuation of the Estate Trustee During Litigation (ETDL).

The applicant raised concerns about his mother's capacity to act as estate trustee following her examination out of court, where she provided non-responsive answers and demonstrated a lack of understanding of the estate's multi-million dollar debts.

The court found that the mother's capacity was in issue and ordered the assessment, balancing her privacy rights against the need to protect the vulnerable estate.

The court also granted a mandatory injunction to continue the ETDL's mandate to maintain the status quo pending the capacity assessment and the main application.

The plaintiff commenced a proceeding against Toronto Animal Services, Toronto Police Services (TPS) officers, and City Legal employees, alleging various torts arising from dog attack incidents in 2016, subsequent Dog Owners’ Liability Act (DOLA) proceedings, and criminal charges.

The defendants brought a motion to strike the entire Statement of Claim without leave to amend.

The court struck claims against TPS defendants arising from the 2016 incidents as statute-barred under the Limitations Act, 2002, and negligent investigation claims due to the plaintiff's criminal convictions.

Claims for misfeasance in public office against City Legal defendants were struck for inadequate pleading and lack of precedent for municipal staff liability, though leave to amend was granted.

Claims against TAS defendants seeking return of dogs were stayed pending the conclusion of ongoing DOLA proceedings to avoid duplicitous findings and abuse of process.

The plaintiff was granted leave to file a Fresh As Amended Statement of Claim to properly plead surviving claims, such as conspiracy to injure and misfeasance in public office.

The Regional Municipality of Halton sought default judgment against Tad Nelson, who had been noted in default.

Nelson subsequently retained counsel and sought to set aside the noting in default.

The court convened a case conference to schedule both motions.

The judge decided that both motions should be heard orally and together by a judge, rather than Nelson's motion to set aside default being heard by a Master first.

The decision emphasized efficiency, affordability, and proportionality over tactical considerations regarding appeal routes.

Following a complex estates trial involving claims and counterclaims among family members, the court determined the costs of the proceedings.

Finding no clear winner or loser, the court applied the modern approach to estates costs and ordered that the partial indemnity costs of the respondent sons and the estate of a deceased son be paid out of the father's estate, due to the public policy considerations engaged by the father's pre-death actions.

The court also ordered the estate to pay the reasonable preparation and attendance costs of non-party professional witnesses.

The underlying action was administratively dismissed for delay by the registrar pursuant to Rule 48.14.

The defendants subsequently brought a motion seeking their costs of the action on a substantial indemnity basis.

The court dismissed the motion, finding that Rule 48.14 does not provide for costs upon an administrative dismissal, and that the defendants could have moved for dismissal under Rule 24 if they wished to seek costs.