Amanda M. Estabrooks

This is a costs endorsement following the dismissal of Patricia Graham's application to invalidate a will.

Katherine Blais, the successful respondent, sought costs on a partial indemnity scale.

The court fixed Ms. Blais's costs at $22,000, reducing the requested amount of $30,700.

The decision considered Ms. Graham's conduct in unnecessarily lengthening the proceeding, the reasonableness of hourly rates for counsel of differing experience, and the exclusion of fees for inadequately explained non-lawyer timekeepers.

The applicant challenged $776,000 in inter vivos transfers made by her elderly father to her brother, the respondent, in the 20 months prior to the father's death.

The applicant argued the transfers were void due to a resulting trust and undue influence, citing the father's dementia.

The court found that a $500,000 transfer was a valid gift, corroborated by a signed Gift Letter and the evidence of an investment advisor.

However, the court held that a $98,000 cheque and $178,000 in e-transfers were not valid gifts, as the respondent failed to rebut the presumption of a resulting trust with corroborating evidence.

The application was allowed in part.

The applicant, Patricia Graham, sought to invalidate her late sister Sheila Mary McNally's 2020 will on grounds of lack of testamentary capacity, undue influence, and suspicious circumstances.

The respondent, Katherine Blais (estate trustee and beneficiary), moved to dismiss the application, arguing the applicant failed to meet the minimal evidentiary threshold.

The court found that the applicant's evidence was largely speculation and suspicion, failing to meet the required threshold to call the will's validity into question.

The motion to dismiss was granted, and the application was dismissed in its entirety, with costs awarded against the applicant.

Following an appeal in an estate matter, the respondent sought costs of $43,630.71 on a substantial indemnity basis, payable immediately rather than from the appellant's share of the estate.

The Divisional Court found no reprehensible conduct to justify substantial indemnity costs and fixed costs at $28,000 on a partial indemnity basis.

The court ordered the costs to be paid forthwith due to uncertainty regarding the timing of the estate's distribution.

The appellant appealed an order approving the passing of accounts by the estate trustee of their late brother's estate.

The appellant argued the audit judge erred in the standard of recordkeeping required, specifically regarding the absence of written receipts for some expenses.

The Divisional Court dismissed the appeal, finding the audit judge correctly applied the standard of care of a person of ordinary prudence and reasonably accepted the trustee's sworn explanations and corroborating evidence.

The court also upheld the audit judge's decisions regarding the distribution of artwork, the refusal to order a trial of late-raised issues, and denied leave to appeal the costs order.

The applicant brought a motion for summary judgment to set aside a marriage contract following her husband's death, alleging she did not understand the contract and that he failed to disclose significant assets.

The respondent estate opposed the motion, arguing that the applicant's credibility was a genuine issue for trial.

The court dismissed the motion, finding that the applicant's uncorroborated evidence contradicted the written contract and certificates of independent legal advice, and that a full trial was necessary to assess her credibility and the validity of the contract.

The appellant, a consultant who submitted a bid for a government standing offer, was investigated and charged with bid-rigging after a government contract manager reported similarities between his bid and another.

The charges were later stayed.

The appellant sued the government and the contract manager for negligence, negligent misrepresentation, and defamation, seeking $2,000,000 in damages.

The trial judge dismissed the action.

On appeal, the Court of Appeal upheld the trial judge's findings that the government's answers to bidders were accurate and not misleading, and that the contract manager's statements to investigators were protected by qualified privilege without malice.

The appeal was dismissed.

The plaintiff was severely injured in a recreational hockey game when the defendant delivered a blindside hit to his head.

The plaintiff suffered a concussion, broken teeth, and facial cuts, leading to long-term cognitive and functional limitations that impacted his ability to work as a personal trainer.

The defendant argued the collision was accidental and that the plaintiff was contributorily negligent due to his choice of facial protection and chronic cannabis use.

The court found the defendant fully liable, concluding the hit was intentional or reckless and outside the bounds of fair play.

The court awarded the plaintiff $702,551 in damages, including general damages and past and future income loss.

The plaintiff sued for damages totalling approximately two million dollars, alleging negligent misrepresentation, negligence, and defamation against the Attorney General of Canada and a contract manager, Paul Piché.

The claims arose from the plaintiff's participation in a 2007 Request for Standing Offer (RFSO) where his bid was largely prepared by a competitor, leading to a bid-rigging investigation and charges (later stayed).

The plaintiff argued that negligent answers to RFSO questions induced his actions and that Piché's statements to the Competition Bureau were defamatory.

The court dismissed all claims, finding no duty of care owed by the defendants to provide legal advice on the Competition Act, no negligent misrepresentation or breach of standard of care, and no malice in the defamation claim.

The court also determined that the plaintiff's reliance was unreasonable and that his alleged damages were unproven and too remote, largely attributable to his own contributory negligence.

The applicants brought a motion for approval of a settlement reached on behalf of a minor who was injured in a dog attack.

The proposed settlement included damages, interest, and costs totaling $65,135.82.

The court adjourned the motion, finding that additional evidence was required regarding the minor's psychological injuries, future surgical needs, apportionment of travel expenses, liability compromise, and the proposed investment of the settlement funds outside of the Accountant for the Superior Court of Justice.

The plaintiffs brought a motion for court approval of a settlement under Rule 7.08 of the Rules of Civil Procedure, involving minor plaintiffs.

The proposed settlement of $250,000.00 included an allocation of $1,000.00 for each minor.

The court declined to approve the settlement due to concerns about a potential conflict of interest between the litigation guardian and the minor plaintiffs, the absence of proposed minutes of settlement, and the proposal to pay funds into RESPs instead of into court as required by Rule 7.09(1).

The court requested additional evidence to assess whether the settlement was in the best interests of the minor plaintiffs.

The respondents' family members were killed in a motor vehicle collision caused by a driver fleeing a high-speed pursuit by the Akwesasne Mohawk Police Service.

The respondents sued the police service and the governments of Ontario, Quebec, and Canada, alleging vicarious liability and direct negligence.

The governments appealed the dismissal of their summary judgment motions and the granting of the respondents' motion to amend their pleadings.

The Court of Appeal allowed the appeals, finding that the quadripartite policing agreement did not create a relationship sufficiently close to impose vicarious liability on the provinces, and that the governments owed no private law duty of care to the deceased based on a 1991 audit report.

The appellant, who sustained a severe traumatic brain injury, appealed a decision of the Health Services Appeal and Review Board denying her request for pre-approved funding for in-patient rehabilitative services at an Alberta facility.

The facility was not licensed as a hospital and did not accept public funding.

The appellant argued the denial breached her rights under sections 7 and 15 of the Charter.

The Divisional Court dismissed the appeal, finding that section 7 does not impose a positive obligation on the government to fund out-of-province medical treatments, and that the denial was based on the facility's licensing status, not the appellant's disability, thus not engaging section 15.

Following a trial in a personal injury action, the court addressed the issue of costs after written submissions.

The successful plaintiff sought substantial indemnity costs alleging litigation misconduct by the defendants, including failure to produce an important engineering drawing and challenging the plaintiff’s credibility.

The defendants argued costs should be reduced due to delay and duplication arising from the plaintiff changing counsel multiple times and periods of self‑representation.

The court held that neither party’s conduct justified substantial indemnity costs and emphasized the principle that cost awards must be fair and reasonable rather than matching actual legal fees.

Partial indemnity costs of $200,000 inclusive of taxes and disbursements were awarded to the plaintiff, apportioned in accordance with the liability findings.

The plaintiff brought a negligence action against a municipality and road construction contractors after tripping on a height differential at a crosswalk during an ongoing road reconstruction project.

The court found that the unfinished roadway created a tripping hazard amounting to a condition of non-repair under s. 44 of the Municipal Act, 2001.

The defendants failed to install temporary ramping or provide adequate warning of the vertical gap between the roadway and depressed curb.

The court rejected allegations of contributory negligence and held that all defendants were occupiers responsible for site safety under the Occupiers’ Liability Act.

Liability was apportioned 50% to the paving contractor and 25% each to the municipality and general contractor, and damages were awarded for general damages, income loss, future care, and expenses.

Following a civil jury trial arising from a motor vehicle accident involving an intoxicated driver and alleged commercial host over-service, the appellant bar challenged the trial judge’s decision to set aside the jury’s $0 award for future income loss and substitute his own assessment.

The Court of Appeal held that the common law and Rule 52.08 threshold for disregarding a jury verdict were not met because there was some evidence supporting the jury’s conclusion.

The court upheld the trial costs award, rejecting the argument that the successful plaintiff should have been deprived of costs.

On the cross appeal, the court rejected requests for a new trial based on counsel conduct and trial complexity, but held that the jury questions and instructions on apportionment of liability were legally flawed under the commercial host framework and the Negligence Act.

Rather than ordering a new trial, the court directed that apportionment be resolved by agreement or further written submissions, with no costs of the appeal and cross appeal.