Alan J. Butcher

The appellants appealed an order validating unsigned 2024 draft wills under s. 21.1 of the Succession Law Reform Act.

The deceased had executed a will in 2018 and improperly executed wills in 2022, before having new drafts prepared in 2024 that remained unsigned at his death.

The Court of Appeal admitted the 2018 will as fresh evidence, set aside the validation of the 2024 drafts because they did not reflect final testamentary intentions, and remitted the issue of the 2022 wills' validity to the Superior Court for fact-finding.

This application sought the court's opinion and direction on the interpretation and potential rectification of Shirley Cunningham's General and Limited Property Wills.

The core issue was whether Kimberly Cunningham, a grandchild born outside of marriage, should be considered a "child" of Tenny Clark-Drost for the purposes of a trust established in the wills, given an "Exclusion Clause" that defined "children" as not including those born outside marriage.

The applicant, Carrie-Lee Hofman, argued Kimberly was excluded.

The respondent, Kimberly Cunningham, sought rectification, arguing the clause was a drafting error contrary to the testatrix's true intent.

The court found that the drafting solicitor's inclusion of the Exclusion Clause and the use of a beneficiary class instead of specific names constituted a drafting mistake, as it did not align with Shirley's clear instructions to benefit both Carrie-Lee and Kimberly equally.

Rectification was ordered, deleting the problematic clauses from both wills, thereby including Kimberly as a beneficiary.

The plaintiff contractor sued the defendant homeowners for unpaid amounts under a contract for the construction of a custom home.

The defendants counterclaimed, alleging the plaintiff breached the contract through delays, poor workmanship, and misrepresentations, and argued they were justified in refusing further payments and denying the plaintiff access to the property to fix deficiencies.

The court found that the defendants repudiated the contract by refusing to pay and locking the plaintiff out, while the plaintiff remained willing to complete the work.

The defendants' counterclaim was dismissed, and liability was found in favour of the plaintiff, with damages to be determined at a later hearing.

The appellant appealed a summary judgment decision that enforced an oral agreement of purchase and sale for the sale of his property to the respondents for $750,000 (after a $100,000 gift to his daughter).

The motion judge had found that the parties agreed to extend the closing date beyond August 31, 2016.

The Court of Appeal allowed the appeal, finding that the motion judge made a palpable and overriding error in making a factual determination regarding whether the parties had agreed to extend the closing date.

The court held that this crucial factual question, which turned on credibility assessments and competing versions of events, could not be properly resolved on summary judgment and required a trial.

The defendants brought a motion for security for costs.

The plaintiffs conceded entitlement but disputed the quantum and requested payment in instalments.

The court noted the plaintiffs' history of non-payment of prior costs awards and concerns about the merits of their case due to related proceedings.

The court ordered security for costs in the amount of $93,419.70, deducting anticipated trial and mediation costs, payable in three instalments.

The appellant appealed a Small Claims Court decision dismissing his action for nuisance, negligence, and trespass against his neighbour.

The dispute arose when the respondent cut down boundary cedars to build a fence for the safety of a special needs child, after the appellant unreasonably refused consent.

The Divisional Court upheld the trial judge's finding that the overgrown cedars constituted a nuisance, substantially and unreasonably interfering with the respondent's use of his property.

The court confirmed that where a boundary tree is a nuisance, the Forestry Act does not prevent a co-owner from abating the nuisance through self-help if the other owner unreasonably withholds consent.

The appeal was dismissed.

The applicant brought a motion to enforce a settlement agreement allegedly reached through correspondence between counsel following his termination and a shareholder dispute.

The respondents had offered a settlement that included the return of a specific iPad.

The applicant accepted most terms but stated he did not have the iPad.

The court found that the applicant's response did not constitute an absolute and unqualified acceptance of all essential terms of the offer.

Because the acceptance was not a mirror image of the offer, no binding settlement agreement was formed.

The application was dismissed, with each party bearing their own costs.

The appellant appealed the trial judge's damages assessment of $270,735 for the tort of conversion of large metal die blocks.

The appellant argued damages should be based on scrap metal value rather than replacement cost, challenged the finding that it purchased 90% of the missing blocks, and disputed a $7,500 award for the respondent's lost time and productivity.

The Court of Appeal dismissed the appeal, finding the die blocks were useable and properly valued at replacement cost, the factual findings were supported by evidence, and the employee costs were directly connected to investigating the conversion.

Following a trial in a civil action based on the tort of conversion, the court addressed the quantum of costs payable after awarding damages of $270,735 to the plaintiff.

The defendant conceded liability for costs on a partial indemnity scale but disputed the amount claimed.

The court considered the factors in Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, counsel time spent, and the adequacy of disbursement evidence.

Concerns were raised about duplication of effort after the plaintiff changed counsel and insufficient breakdown of certain disbursements.

The court fixed costs at $75,000 in fees plus HST and $5,000 in disbursements inclusive.

Following a four‑day defamation trial in which the plaintiff obtained judgment of $126,218, the court addressed costs.

The plaintiff had delivered a Rule 49 offer to settle for $25,000 inclusive of costs, which was not accepted.

The court held that the plaintiff was entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter pursuant to Rule 49.10.

After reviewing the bill of costs and considering proportionality and delays in prosecution, the court fixed costs at $50,000 plus HST and awarded disbursements of $4,941.15 inclusive of HST.

A manufacturing company sued a scrap metal dealer in conversion after stolen industrial dye blocks and related materials were sold to the dealer by a third party thief.

The court held that conversion is a tort of strict liability and that the dealer was liable for purchasing and reselling property belonging to the plaintiff, even if done in good faith.

Arguments that the plaintiff had been on notice of potential theft or contributorily negligent were rejected.

Due to incomplete records and uncertainty regarding the precise quantity of stolen goods, the court approximated the amount converted and assessed damages based primarily on replacement metal cost and associated fabrication expenses rather than scrap value.

Judgment was awarded for damages reflecting the value of converted dye blocks and related losses.

A craftsman sued the estate of a former business partner following a break‑in at his workshop, theft and destruction of moulds used to manufacture replica automobile bodies, and defamatory internet postings that redirected potential customers to the defendant’s website.

The court found the defendant liable for conversion, breach of contract, defamation, and bailment losses relating to vehicles and products stored on the defendant’s property.

The defamatory online statements falsely described the plaintiff as a scammer and remained publicly accessible for several years, significantly damaging his reputation and business.

The court awarded damages for the destroyed moulds, lost business opportunity, defamation, bailment losses, and punitive damages due to the malicious and high‑handed nature of the misconduct.

Total damages of $126,218 were awarded after mitigation.

The defendant sought costs following a motion that resulted in a consent order requiring the plaintiff to vacate a property, cooperate in its sale, and discharge a certificate of pending litigation.

The court considered the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, including indemnification of successful litigants, encouragement of settlement, and discouragement of inappropriate conduct.

The court found that the defendant was compelled to bring the motion due to the plaintiff’s failure to communicate her willingness to vacate the property and cooperate with the sale, which caused delay and required an extension payment to the purchaser.

The defendant was therefore entitled to partial indemnity costs.

Costs were fixed at $7,350 plus HST and disbursements, payable from the plaintiff’s share of the net proceeds of sale.

The appellant appealed a summary judgment dismissing his action against the respondent bank for breach of a settlement agreement.

The appellant argued the bank improperly reported his written-off debt as an R9 'bad debt' credit rating.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the summary judgment test and that the settlement agreement explicitly stated the bank was not required to report to credit agencies in any particular way.

The appellant appealed a motion judge's decision, arguing that there were material facts in dispute and a trial of the issue should have been directed.

The Court of Appeal dismissed the appeal, noting that the appellant had previously taken the position that no material facts were in dispute and could not now seek a trial of an issue.

The court further held that, in any event, there were juristic reasons for the deprivation in the context of the insolvency proceedings.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that there was ample evidence to support the motions judge's conclusion and no error in fact or law.

Costs were awarded to the respondent in the amount of $2,500.

The parties entered into a joint venture agreement (JVA) to market CFC-free refrigerants.

The relationship deteriorated, leading to multiple lawsuits involving claims of breach of contract, misrepresentation, and conversion.

The trial judge found that the Lam Group breached the JVA but that the Gu Group had waived its right to damages by its subsequent conduct in negotiating a new agreement.

The trial judge also denied the Gu Group an inquiry into damages on the Lam Group's interlocutory injunction undertaking because the Gu Group had flagrantly violated the injunction.

The Lam Group's cross-appeal regarding pre-contractual misrepresentations and oppression was dismissed.

The trial judge's award of $50,000 in punitive damages against the Lam Group for the conversion of a laptop computer was upheld.

The Court of Appeal dismissed all appeals and the cross-appeal.

In an addendum to its previous decision, the Court of Appeal for Ontario declined to reconsider its decision regarding the stay of the judgment, noting its variation of the motion judge's order was largely cosmetic.

The respondent was awarded costs fixed at $4,000.

The appellants appealed the summary dismissal of their negligent misrepresentation claim against the respondent bank, and the partial judgment granted on the respondent's claim on a mortgage guarantee.

The Court of Appeal dismissed the misrepresentation appeal, finding no evidence that the bank falsely represented a third party's financial status or implied he would personally guarantee the loan.

On the guarantee claim, the Court held that the motion judge properly granted judgment but varied the order to grant the full amount of $869,091.18, while staying $246,000 of that judgment pending the determination of the appellants' counterclaim for an improvident sale.

The appellant mortgagee appealed the dismissal of its action against a guarantor on summary judgment.

The motions judge had found that the guarantor was discharged due to a change in the principal contract.

The Court of Appeal allowed the appeal, holding that the sale of shares of the principal debtor corporation to third parties did not vary the contract between the principal debtor and the mortgagee, nor did it breach the guarantee contract.

The appellant was granted summary judgment on the guarantee in the amount of $869,091.18.