Anne Posno

In an estate appeal, the court held that the judgment under appeal was, on its face, made under the Succession Law Reform Act.

Because s. 76 grants exclusive appellate jurisdiction to the Divisional Court for appeals under that Act, the Court of Appeal lacked jurisdiction.

The appeal was dismissed on that basis.

The court also ordered costs payable to the respondent by the estate in an agreed all-inclusive amount.

The applicant developer brought a motion under Rule 49.09 to enforce a purported settlement agreement regarding a land dispute that was blocking a subdivision development.

The applicant argued that the parties had agreed on the essential terms of a land sale in exchange for the withdrawal of the respondents' objection.

The court dismissed the motion, finding that there was no mutual intention to be bound because several terms proposed by the respondents in a counteroffer, including the closing date, right of assignment, and registration of the agreement, were never accepted by the applicant.

The plaintiff, a neighbour, sued the estate of John Zigomanis in negligence after a house explosion caused by John's son, Paul, who lived in the house and died in the explosion.

The defendant estate trustee brought a motion to determine a question of law, arguing the estate did not own the house and owed no duty of care.

Relying on a companion decision, the court found that legal title had reverted to Paul prior to the explosion, and the estate's payment of utility bills did not create a relationship of proximity.

The court concluded the estate owed no duty of care and dismissed the claim against it.

The parties sought to settle an order following a decision finding the respondent in breach of an indemnity agreement related to a commercial lease.

The applicant landlord requested that the order include rent payable through to the end of the lease term, an issue not raised during the initial application.

The court held that while a lease is a commercial contract allowing for damages post-termination, the landlord has a duty to mitigate.

Because the landlord provided no evidence that the loss of future rent was unavoidable, the court declined to include an award for rent beyond the date previously determined.

The applicant landlord brought an application to enforce an indemnity agreement against the respondent guarantor after the tenant defaulted on a commercial lease.

The respondent argued the application should be converted to a trial, alleging it was induced to sign the indemnity by negligent misrepresentations regarding park signage and access.

The court found no evidence of specific, actionable representations and held that the absolute and unconditional terms of the indemnity agreement, along with the parol evidence rule, precluded the respondent's defence.

The application was granted, and the respondent was ordered to pay rent arrears, restoration costs, and legal fees.

The parties appeared at a case conference to settle a draft Order arising from previous Reasons for Decision.

The plaintiff advised the court of its intention to discontinue the proceeding and make a voluntary assignment into bankruptcy.

The draft Order, including costs, was settled and signed by the court.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

Motions were brought to quash summonses issued by a litigant seeking to compel opposing counsel and a proposed estate trustee during litigation to testify in support of a motion alleging judicial duress in prior settlement proceedings.

The court considered the stringent requirements for summoning opposing counsel as witnesses, emphasizing that such a step requires a high degree of materiality and necessity and should be avoided unless demanded by the administration of justice.

The court found the evidence sought was neither material nor necessary, noting that the moving party had already filed affidavits, transcripts, and audio recordings addressing the relevant events.

The proposed examinations were characterized as a fishing expedition and potentially tactical, as they would force opposing counsel to withdraw and cause delay and expense.

The summonses were quashed and substantial indemnity costs were awarded.

The moving party sought an adjournment of his motion to set aside consent orders previously made in complex estate litigation.

The respondents opposed the adjournment, arguing prejudice and delay in the sale of an estate property.

The court refused to adjourn the portions of the motion relating to the dismissal of claims against former counsel and the removal of the Estate Trustee During Litigation, finding no merit to those claims and emphasizing the need to enforce court orders.

The court granted an adjournment for the remaining issues regarding the consent orders but ordered the moving party to personally pay the ongoing expenses of the estate property and awarded costs of $54,490 to the respondents on a partial indemnity basis.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.