Andrew Anthony

Following a trial concerning ownership of a residential property, the successful plaintiff sought costs after obtaining a declaration of a one-half interest in the property.

The court considered a Rule 49 offer to settle under the Rules of Civil Procedure in which the plaintiff had offered to sell her interest for $250,000, which the estate declined.

Evidence of comparable sales indicated the property value exceeded $500,000, meaning the plaintiff achieved a better result at trial.

The court held that Rule 49 consequences applied, awarding partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Costs were ordered against the estate but not against the co-defendant who had assigned his interest before trial.

The plaintiff sought a declaration that she held a beneficial one-half interest in a Toronto property formerly owned by her deceased husband as tenant-in-common with his brother.

The defendants argued the property was held in trust for the brothers’ mother and that the plaintiff only held title as trustee rather than beneficial owner.

After reviewing the family’s financial contributions, tax filings, and historical dealings with the property, the court found no evidence of an express, resulting, or constructive trust in favour of the mother.

The evidence showed the brothers were the true beneficial owners who funded and maintained the property and consistently declared rental income on their tax returns.

The plaintiff therefore succeeded to her late husband’s beneficial half-interest, and the court ordered partition and sale of the property with proceeds divided equally.

During a trial concerning ownership of residential property and whether a resulting or constructive trust existed in favour of an estate, the plaintiff brought a mid‑trial motion seeking production of the deceased’s wills.

The court considered the principles of relevance and admissibility under the Rules of Civil Procedure and common law evidence authorities.

The wills were found to be potentially relevant to the intent of the deceased regarding the property at issue.

The court rejected arguments that family conflict created undue prejudice and held any risk could be controlled in a judge‑alone trial through appropriate weight.

Production of the wills was ordered subject to a confidentiality order sealing them from the public record.