Andrea McEwan

The court considered an application by the estate trustee of Laurette Marie Patriquin for directions regarding the administration of a bequest to a charitable institution that no longer existed at the time of the testator’s death.

The court applied the cy-près doctrine and directed that the bequest intended for The Shriners Hospital for Children in Minneapolis, Minnesota, be paid instead to Shriners Children’s Twin Cities, as its successor.

The court also addressed costs, awarding $3,000 to Shriners Children’s Twin Cities and $10,000 to the applicant, both payable from the estate, after considering proportionality and the necessity of the application.

The Estate Trustee During Litigation (ETDL) brought a motion for directions to approve the sale of a commercial property belonging to the deceased's estate.

The sale was supported by one residual beneficiary but opposed by the other, who argued the property was undervalued.

The court applied the principles for approving a sale by a court-appointed receiver or trustee, finding that the ETDL had the power to sell, acted in good faith, and made sufficient efforts to obtain the best price by exposing the property to the market.

The court approved the sale, concluding it was in the best interests of the estate, and awarded costs to the ETDL and the supporting beneficiary.

The applicants, disinherited daughters of the deceased, brought a motion for the appointment of a neutral professional Estate Trustee During Litigation (ETDL) to manage their father's substantial estate during a will challenge.

The named estate trustees (the deceased's second wife and business associates), who were also respondents and potential witnesses in the will challenge, sought to be appointed as ETDL themselves, arguing their unique knowledge of the deceased's business.

The court found that a neutral professional ETDL was warranted given the acrimony between the parties, the estate trustees' inevitable role as witnesses, and the significant value of the estate, dismissing the estate trustees' request to appoint themselves.

The applicant ex-spouse sought a declaration for the proceeds of the deceased's Locked-in Retirement Account (LIRA) based on a 1997 beneficiary designation.

The respondent estate and parents opposed, relying on a 2001 designation changing the beneficiary to the parents, of which only a photocopy could be found, and a 2005 final matrimonial release.

The court dismissed the application, finding the 2001 photocopy was a valid instrument under the Succession Law Reform Act that revoked the 1997 designation.

Furthermore, the 2005 matrimonial settlement and release precluded the applicant's claim, and awarding her the LIRA would result in unjust enrichment.

Legal Aid Ontario brought a motion to re-open the evidence and vary a costs decision that held it liable for 50% of the full indemnity costs awarded against the respondent.

LAO sought to introduce evidence refuting the court's presumptions that it had received an expert report and notice of a Public Guardian and Trustee certificate earlier than it claimed.

The court dismissed the motion, finding that the presumptions did not constitute a 'mistake' under Rule 25(19)(b) of the Family Law Rules, that LAO had ample opportunity to address these issues prior to the costs decision, and that the proposed evidence would not have changed the result.

The applicant suffered a catastrophic brain injury resulting in severe cognitive impairments.

Shortly after his release from the hospital, the respondent, his former partner, secretly married him.

The applicant's sons, acting as his guardians, sought to annul the marriage, enforce a prior property settlement agreement, and obtain a non-communication order.

The court found that the applicant lacked the requisite mental capacity to understand the nature and responsibilities of marriage, declaring the marriage void ab initio.

The court also enforced the property settlement agreement, vesting sole title of the shared home in the applicant, and granted a permanent non-communication order against the respondent.

The Nortel group of companies filed for insolvency protection across multiple jurisdictions.

Following the sale of Nortel's assets, approximately $7.3 billion was placed in escrow.

The trial judge ordered that these lockbox funds be allocated on a pro rata basis among the various debtor estates, finding that Nortel operated as a highly integrated multinational enterprise and that the master research and development agreement did not govern allocation upon insolvency.

Several parties sought leave to appeal under the Companies' Creditors Arrangement Act.

The Court of Appeal denied leave, finding that the proposed appeals were not prima facie meritorious, did not raise issues of significance to the practice, and would unduly hinder the progress of the proceedings.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

The defendant moved to stay or dismiss an Ontario action seeking recognition and enforcement of a U.S. judgment, arguing that Ontario lacked jurisdiction because there was no real and substantial connection between the defendant and Ontario.

The plaintiff brought a cross‑motion to amend its statement of claim to add grounds for service ex juris.

The court held that in recognition and enforcement proceedings the applicable test is that set out in Beals v. Saldanha, requiring a real and substantial connection between the foreign court and the underlying dispute, not between the defendant and Ontario.

The court found the Beals criteria were satisfied, including a final foreign judgment for a fixed sum and no applicable defences.

The defendant’s motion was dismissed and the plaintiff’s amendment was allowed in part to clarify service outside Ontario.

In a receivership over a commercial condominium development, the receiver sought approval of a marketing and sale process allowing the property to be sold free and clear of unregistered unit purchase agreements and leases.

A group of purchasers argued their agreements should be honoured and that the project should proceed to condominium registration so their units could close.

The court held that the first mortgagee’s registered security had legal priority over the purchasers’ and tenants’ interests, which were unregistered and expressly subordinated by contract.

The receiver was not required to borrow funds or complete construction to facilitate specific performance of the agreements.

Finding that the equities did not favour the purchasers, the court approved the marketing process and authorized termination and vesting out of the agreements and leases if required for a sale.

A secured creditor brought an application under the Bankruptcy and Insolvency Act seeking the appointment of an interim receiver over the assets of a debtor corporation.

The debtor opposed the application and brought a motion to stay the receivership proceeding or alternatively to consolidate it with a separate action challenging the validity of a general security agreement and alleging contractual breaches.

The court found on the evidence that the debtor was insolvent, unable to meet obligations as they became due, and operating at a deficit.

As the debtor had granted security that became enforceable upon insolvency, the secured creditor’s interest required protection through court supervision.

An interim receiver with limited powers was appointed and the debtor’s motion for a stay or consolidation was dismissed.

The appellants appealed a summary judgment declaring a franchise agreement validly rescinded under the Arthur Wishart Act and finding that the individual appellant and a subleasing entity were franchisor's associates.

The Court of Appeal upheld the finding regarding the individual appellant, as he owned 50% of the franchisor's shares and ran its day-to-day business.

However, the court allowed the appeal regarding the subleasing entity, finding no evidence that it exercised significant operational control over the franchisee, and directed that issue to proceed to trial.

The Crown appealed the respondent's acquittals for attempted murder and endangering, as well as the sentence imposed for several serious gun-related offences arising from a shooting in a restaurant.

The Court of Appeal dismissed the acquittal appeals, finding no error of law regarding the attempted murder charge and noting the Crown's refusal to seek a new trial on the endangering counts despite a misdirection.

However, the Court allowed the sentence appeal, finding the effective sentence of 8.5 years manifestly inadequate given the paramount importance of general deterrence and denunciation.

The sentence was varied to an effective term of 10 years.

The young person appealed the decision to sentence him as an adult.

He argued the trial judge erred by failing to consider the immigration consequences and possible deportation resulting from the sentence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's determination, particularly given the position taken by defence counsel at trial and the absence of a proper evidentiary record regarding deportation.

The appellant was convicted of fraud over $5000 after taking $90,000 from an elderly complainant under the guise of real estate investments.

On appeal, the appellant argued the trial judge failed to properly caution the jury about the dangers of relying on the complainant's testimony, given her prior inconsistent statements at the preliminary hearing.

The Court of Appeal dismissed the appeal, finding the trial judge's instructions on credibility and prior inconsistent statements were adequate and a Vetrovec warning was not required.

The appellant appealed his conviction for trafficking in a substance held out to be cocaine and his sentence of 38 months' imprisonment.

He argued the trial judge erred in assessing the credibility of the key Crown witness and that his sentence offended the parity principle and failed to account for time spent on house arrest while on bail.

The Court of Appeal dismissed the conviction appeal, finding the witness's evidence was uncontradicted and supported by objective records.

The sentence appeal was also dismissed; although the trial judge may have erred in not considering the bail conditions, the sentence remained fit given the appellant's extensive criminal record and the co-accused's cooperation with police.