Alissa N. Winicki

The Court of Appeal for Ontario dismissed the appeal of Kyrle Blake Farmer, who had served as estate trustee and attorney for property for his aunt, Billie Frances Farmer.

The respondents, his brothers, challenged his distributions and expenses.

The application judge found that Billie lacked capacity to provide instructions, that the appellant’s compensation and expenses were not justified, and that he failed to keep proper accounts.

The appellant was ordered to repay significant sums to the estate.

The Court of Appeal found no error in the application judge’s findings or orders and dismissed the appeal with costs.

The applicant moved to set aside an order that removed him as estate trustee and appointed an Estate Trustee During Litigation (ETDL), arguing he lacked notice of the underlying contempt motion.

The court found the applicant had proper notice through his former counsel but chose not to attend.

The court further held that even if notice was improper, the appointment of an ETDL was necessary given the adversarial relationship between the co-trustees and the applicant's improper administration of the estate.

The motion was dismissed with costs awarded to the respondent.

The applicant, Michael McArthur, sought an order compelling the respondent, Susan Elizabeth McArthur, to pass accounts for the period she acted as their deceased mother's attorney for property.

The respondent denied acting as attorney and asserted the mother remained capable.

The court found that the respondent did act as attorney for property and was significantly involved in the mother's financial affairs, despite the mother's capacity.

Given significant concerns regarding the management of funds, including unexplained transactions and the disposition of condominium sale proceeds, the court granted leave for the applicant to apply for a passing of accounts, declared the respondent acted as attorney for a specified period, ordered the respondent to provide particulars and submit to cross-examination, and awarded costs to the applicant.

The applicant sought a declaration that title to a property ("Thorah") be restored to her as a joint tenant, or alternatively, that the respondents were unjustly enriched due to her contributions.

The court determined that the property was held as tenants in common, not joint tenants, applying the presumption under the Conveyancing and Law of Property Act, as the conveying will did not explicitly state an intention for joint tenancy.

Consequently, the deceased's one-half interest fell into her estate.

The court dismissed the primary claim for joint tenancy restoration.

Regarding the unjust enrichment claim, the court ordered that carrying costs and a joint line of credit be apportioned between the applicant and the deceased's estate based on their respective contributions and usage, without requiring a formal reference.

Each party was ordered to bear their own costs due to the ambiguity in the original will.

The Estate Trustee sought declarations that the deceased was the sole owner of a property, that it vested in the Estate Trustee, and for immediate vacant possession to facilitate its sale for estate administration.

The respondent, a beneficiary occupying the property, sought an adjournment of the application and resisted immediate eviction, having commenced a dependant support application.

The court declared the property vested in the Estate Trustee and authorized its sale.

While denying immediate vacant possession, the court ordered the respondent to provide full access for appraisal and showings, vacate during these visits, and vacate the property entirely seven days before closing.

Costs were awarded to the applicant from the Estate.

The plaintiff brought a motion for summary judgment against the defendant, an independent contractor, for funds stolen through a fraudulent cheque scheme.

The defendant did not appear at the hearing.

The court found that the defendant had altered cheques written in her favour and deposited them multiple times, stealing $38,139.15.

The court granted summary judgment for the plaintiff, dismissed the defendant's counterclaim for outstanding wages, and awarded prejudgment interest from the date the fraudulent activity commenced.

Costs were awarded to the plaintiff on a substantial indemnity basis due to the defendant's reprehensible conduct.

The Plaintiff, Venturistic Investments Inc., sought to bring a motion for summary judgment against the Defendant, Mason, for alleged theft of approximately $38,000 through altered and multiple-deposited cheques.

The Defendant failed to attend a Civil Practice Court hearing and a subsequent case conference.

The court found the matter appropriate for summary judgment, noting the evidence would primarily involve forensic accounting.

The court scheduled the summary judgment motion for April 6, 2021, set a detailed timetable for materials, and ordered that service of motion materials via the Defendant's email address would be effective.

The judge remained seized of the matter for timetable issues.

The landlord brought a motion to dismiss the tenant's appeal of a Landlord and Tenant Board eviction order for delay and to lift the statutory stay.

The eviction was originally ordered due to the tenant's violent misconduct.

The tenant failed to appear at the motion, despite having initiated the appeal over a year prior and taking no steps to advance it.

The court found the appeal to be extremely weak and the tenant's conduct indicative of an intention to delay.

The court lifted the statutory stay, dismissed the appeal for delay, and awarded costs to the landlord.

The landlord brought a motion to dismiss the tenant's appeal of a Landlord and Tenant Board eviction order for delay.

The tenant failed to appear at the videoconference hearing despite being contacted by the Registrar and provided with dial-in information.

The court proceeded in the tenant's absence, lifted the stay of the eviction order, and dismissed the appeal, awarding costs of $5,000 to the landlord.

Raymon DeRanney died intestate.

Fritzie Deleon and her daughter Caseylynn Deleon brought an application for dependant's relief from his estate.

Fritzie's claim was abandoned.

The court found that Caseylynn, though not a biological child, was a "dependant" under the Succession Law Reform Act because the deceased had demonstrated a settled intention to treat her as a child of his family, primarily through providing shelter and significant financial support for over 15 years.

The court awarded Caseylynn $40,955 for her post-secondary education, rejecting her claim for an equal share of the estate with the deceased's biological daughter, Sonya, due to insufficient evidence of equal treatment intention and Caseylynn's own financial disclosure deficiencies.

The court also addressed costs for the abandoned claim.

The defendant brought a motion for summary judgment to dismiss a construction lien action and discharge the lien, arguing no contract existed with the plaintiff corporation.

Alternatively, she sought an order for the plaintiff to post security for costs due to its alleged impecuniosity.

The court dismissed the summary judgment motion, finding a genuine issue for trial regarding the existence of a contract between the plaintiff corporation and the defendant, and declined to void the contract despite the plaintiff's breach of the Business Names Act.

The motion for security for costs was also dismissed, as the plaintiff established impecuniosity and had a legitimate claim, balancing the defendant's right to costs with the plaintiff's access to justice.