Angela H. Kwok

This decision addresses a motion by Lan Ling to be added as a party to ongoing family law proceedings between Wentong (Wendy) Liu and her spouse, Yilan Yuan.

Lan, the mother of Yuan, sought to consolidate her civil trust claim with the family law application, arguing that certain assets held by Yuan were in trust for her and her husband, Ming.

The court granted consolidation of the civil and family proceedings, permitted Lan to pursue trust claims over specified assets, and required her to provide financial disclosure.

The court declined to allow Lan to act as litigation guardian for Ming due to insufficient evidence of his incapacity and a potential conflict of interest.

Costs were ordered to be borne by each party.

This case involves a challenge to the validity of a holograph will, which disinherited the applicant, Lara Korba, in favour of her brother, the respondent Ian Farooque, who was also named estate trustee.

Lara alleged lack of testamentary capacity, knowledge/approval, and undue influence.

The application sought various remedies, including transferring property back to the estate, an inventory, restraint on asset disposition, appointment of an Estate Trustee During Litigation (ETDL), and extensive production of financial, medical, and testamentary records.

Ian brought a cross-motion to strike portions of Lara's supplementary affidavit.

The court addressed several agreed-upon matters and ruled on contested issues, partially granting production of counselling records, denying further general medical and financial records, and partially striking the applicant's affidavit by removing irrelevant and prejudicial allegations while retaining those relevant to the undue influence claim.

The applicants brought a motion to remove Tiffany Jean as Estate Trustee of the Estate of Warren Nelson Holbrook and for an interpretation of the Hotchpot Clause in Mr. Holbrook’s Will.

The court dismissed the motion to remove the Estate Trustee, finding that the applicants had not met the high threshold for removal, despite ongoing family friction and concerns about conflict of interest regarding a family business (Rejenmor).

The court provided directions for the future of Rejenmor, requiring its windup or sale within two years.

Regarding the Hotchpot Clause, the court adopted the Estate Trustee's interpretation, which treated lifetime advances to beneficiaries as gifts rather than loans requiring repayment, resulting in an unequal distribution where only one beneficiary would receive a residual share.

The appellants appealed a decision granting the respondent leave to bring a derivative action.

The appellants argued the motions judge applied the wrong burden of proof regarding good faith, erred in finding the action was in the corporation's best interest, and failed to consider whether an oppression remedy was more appropriate.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's factual findings on good faith and the corporation's best interests.

The court also declined to consider the oppression remedy argument as it was not raised before the motions judge.

Yvette Dubajic applied to pass her accounts as Estate Trustee and Power of Attorney for Property for her late father.

Her sister and niece opposed the accounts, sought an accounting back to 2003, and applied to remove Yvette as Estate Trustee.

The court found Yvette acted with ordinary prudence and diligence, passed her accounts for the relevant periods, and dismissed the application to remove her.

The court also awarded Yvette $15,000 in executor's compensation and ordered the opposing parties to personally pay a portion of her legal costs due to their unreasonable conduct.

The moving party, an estate trustee, brought a motion to add her sister as a respondent to two consolidated applications: an application to pass accounts and an application for the removal of the estate trustee.

The sister and her daughter opposed the joinder.

The court found that the sister was an interested party who had demanded an accounting and was a possible beneficiary of the estate.

Applying Rules 5.03 and 9.01 of the Rules of Civil Procedure, the court concluded that the sister was a necessary party whose rights could be affected by the outcome.

The motion was granted, and the sister was ordered to be added as a party to both applications.

The parties agreed that the moving parties would pay costs of the motion in the amount of $5,000 to the responding parties.

The Court of Appeal for Ontario ordered costs in accordance with the parties' agreement.

The respondents (moving parties) sought reconsideration of a prior Court of Appeal decision that had quashed their appeal as interlocutory and dismissed their motion to stay.

The court dismissed the motion for reconsideration, finding that Rule 59.06 of the Rules of Civil Procedure was inapplicable as no order had been issued and entered.

The court emphasized the principle of finality in litigation, stating that reconsideration is only granted sparingly and where the interests of justice require it.

The court noted that the moving parties had already pursued leave to appeal to the Divisional Court and were seeking further leave to appeal that decision, indicating acceptance of the original ruling.

A new argument regarding judicial bias based on counsel's race was deemed irrelevant to the determination of whether the original order was interlocutory or final.

The respondent, a not-for-profit corporation, brought a motion for an injunction requiring the applicants, former employees, to return allegedly misappropriated confidential documents and restraining their further use.

The respondent also sought a sealing order for the court file.

The applicants argued they were whistleblowers exposing corporate wrongdoing.

The court dismissed the motion for an injunction, finding that while there was a serious issue to be tried, the respondent failed to establish it would suffer irreparable harm.

The court also dismissed the request for a sealing order, concluding it was not necessary to prevent a serious risk to an important interest and that the public interest in open court proceedings outweighed the benefits of confidentiality.

The moving parties brought a motion for leave to appeal the order of Fowler Byrne J. dated February 6, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $6,000.

The respondents moved to quash an appeal from an order that appointed an investigative monitor, released interim funds, granted an interim injunction, converted an application to an action, added parties, and refused to seal the court file.

The Court of Appeal held that all aspects of the order were interlocutory in nature, as they did not finally determine the substantive rights of the parties or the real matters in dispute.

Consequently, the appeal was quashed for lack of jurisdiction, as appeals from interlocutory orders lie to the Divisional Court with leave.

This is a costs endorsement following a judgment concerning the division of a business enterprise operating two medical schools.

The Applicants sought partial indemnity costs for legal proceedings in Ontario and St. Vincent and the Grenadines.

The Respondents sought full indemnity costs against the Applicants and requested the judge's recusal due to alleged bias.

The court dismissed the recusal request, found no basis for costs against Applicants' counsel, and declined to award costs for St. Vincent and the Grenadines counsel due to lack of evidence.

The Applicants were largely successful in the main application, securing a monitor, injunctive relief, and an interim disbursement.

The court awarded the Applicants $85,000 in partial indemnity costs, inclusive of fees, disbursements, and taxes, payable within 30 days.

The appellant appealed a summary judgment order finding him jointly and severally liable for a debt.

He argued the motion judge ignored evidence that the respondent owed him money and that a settlement acknowledgement was signed under duress.

The Divisional Court dismissed the appeal, finding the motion judge properly considered the evidence, including a written acknowledgement of final settlement, and that the appellant had not requested to provide oral evidence on the duress claim at the motion.

The appellant appealed a summary judgment granted in favour of the respondent.

The appellant argued that the motion judge erred by deciding the case on summary judgment when the record was deficient.

The Court of Appeal rejected this submission, finding that the motion judge was able to analyze the legal relationship based on the evidentiary record.

The court determined that the appellant was the purchaser of travel products on behalf of its customers and the respondent was the seller, making the appellant responsible for the invoices.

The appeal was dismissed with costs.

The appellant sought an appeal of an order dismissing its application on the grounds of mootness.

The original application sought mandatory orders and an injunction to access certain data controlled by the respondent.

The parties reached a consent order permitting access to the data on the condition that the appellant pay outstanding fees to the respondent's lawyers on a without admission of liability basis.

When the appellant failed to make the payment by the stipulated date, the respondent brought a motion to dismiss the application, which the application judge granted on mootness grounds.

The appellant argued that the payment requirement was optional and that it should have been given a further opportunity to pay before dismissal.

The plaintiff, a travel wholesaler, sought summary judgment against the defendant travel agency for unpaid airline tickets totaling $312,964.10, which were charged back after fraudulent credit card payments.

The defendant argued it was a "middleman" or agent of the plaintiff and not liable.

The court found a direct contractual relationship between the plaintiff as a wholesale seller and the defendant as its customer, making the defendant responsible for payment.

The court rejected the agency argument due to lack of evidence of consent, control, or authority to affect the principal's legal position.

Judgment was awarded to the plaintiff.

The appellant appealed a motion judge's decision refusing to restore the matter to the trial list.

The Court of Appeal found no error in the motion judge's decision, which carefully considered the relevant facts and issues, including prejudice, and properly applied the correct legal test.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to restore her action to the trial list.

The action was commenced in 1999 and struck from the trial list in 2004.

The court applied the conjunctive test from Nissar, finding the plaintiff failed to provide an acceptable explanation for the delay.

Furthermore, the court found actual prejudice to the defendants due to fading memories, the death of a key witness, and the terminal illness of one of the defendants.

The motion was dismissed with costs awarded to the defendants.